may also be inferred from proof of the undisputed exercise of the office. And when the evidence is in the last-mentioned way, it will be for the opposite party to impeach the legality or validity of the appointment. Secondly, Of evidence of sittlement, &c. 8. Evidence in The execution of the office for a year. The execution of the office for a whole year, may be proved either by the officer himself, or by any other person who is able to say, from his own settlements by personal knowledge, that the duties of the office were, in some one instance office. at least, performed by the person appointed; and that he was reputed in the parish to hold that office. Or it may be proved by showing that another, acting as deputy to the person appointed, officiated in his place. But of course a more constant and uniform discharge of the duties of the office should be proved, if the appointment is to be inferred from the exercise of such duties, instead of being directly proved by independent evidence. But where a legal appointment is actually proved, then very slight evidence of the execution of the office is all that will be required. Residence for It is in the last place necessary to prove a residence for forty days in the parish, and in that part of it where some of the duties of the office were to forty days. be performed. Rex v. Corfe Mullen, 1 Bar. § Adol, 211, will illustrate this subject, (see ante, 646, 647.) See Rex v. Stogursy, ante, 842, and post, addenda. In this, as in all other kinds of settlements, a residence for forty days in the parish, and in that part of it where some at least of the duties of the office were to be performed, must be proved. This point will be established without difficulty, (unless the boundary of the parish should happen to be in dispute) by the testimony of the party himself, or of any other person cognizant of the fact. 9. Evidence of Settlement by Payment of Rates. (a) Settlements by payment of rates were virtually abolished by 6 Geo. IV. c. 57; before that period, down to June 22nd, 1795, they were governed by 35 Geo. III. c. 101, s. 4, having, anterior to the passing of which statute, rested upon the law as it stood upon the 3 W. & M. c. 11, s. 6. In all cases, whatever the period in which the settlement by payment of rates is to be established, there must be proof that the person was either actually or constructively rated in respect of his tenement, that he paid such rate, and that he resided in the parish forty days after payment. The rate itself is the best evidence of the rating, and must, in general, be produced. Rex v. Coppull, 2 East, 25; (ante, 659;) but if it be in the custody of the opposite party, who refuses to produce it upon due notice, or if proof be given of its destruction or loss, then secondary evidence is admissible of its contents. In this latter case, some evidence must be given for the purpose of authenticating it; if, however, it be proved to be in the possession of the opposite party, and they having had notice, refuse to produce it, no further proof is necessary to entitle the party to give secondary evidence of its contents. In all other cases it must be duly authenticated; the best proof of which authentication is afforded by evidence of the hand-writing of the justices who allow it. As by 17 Geo. II. c. 3, s. 2, the churchwardens, &c., are to give to the inhabitants of the parish, copies of the rate on demand; such copy proved to have been so given, seems to be good secondary evidence of the rate, without being proved to be an examined copy, but any other copy must be proved to have been compared with the original rate. If no copy is produced, and it is not shown that one exists within the knowledge of the party proving the rate, oral evidence may be given of its contents. If the rate refer to the person by name, his identity, as the person so Forty days' resi dence must be proved. 9. Evidence of settlement by payment of rates. (a) As to this description of settlement, see ante, 651 to 661. Secondly, of evidence of settlement, &c. 9. Evidence of settlement by payment of rates. referred to, may be proved by any one who knows the fact. If he is not named in the rate, it must be shown by distinct evidence, that he was the person contemplated by the parish officers, in rating the tenement of which he was possessed, and that the fact of his occupation at that time was known to the parish officers. Thus, for instance, if the assessment be upon "J. S., or the tenant of Black Acre." Here it is necessary to prove that J. S. was the landlord, and that A., whose settlement is in question, was the tenant. Or if the rate had been upon J. S., a former occupier who was dead, it must be shown that the parish knew of the death at the time they made the rate, and that A. was at that time in the occupation of the premises. As to what in law may be considered a payment, and the time when such payment should be made. (See ante, 656, &c.) To establish a settlement by rating, between the 22nd of June, 1795, and the 22nd of June, 1825, in addition to all the above proofs, it must be shown, that the tenement, in respect of which the party is rated, was of the yearly value of 107. at the time the rate was made. This subject is very fully discussed in Rex v. Lower Heyford, 1 Bar. Adolph. 75 ADDENDA. 845 PAGE 44. An indictment lies against an overseer for refusing to join with Overseers when his colleagues in making a rate, and the original appointment of the overseer must be produced on the trial. Rex v. Arnold, 1 Stra. 101. indictable. P. 62.-By 3 Geo. IV. c. 126, s. 5, and 4 Geo. IV. c. 95, s. 31, tolls and Toll-houses, &c., toll-houses on turnpike roads are not rateable. not rateable. P. 71.-Mines are not in general rateable, Rex v. Sedgley in Staffordshire, Mines not rateHil. T. 1 W. 4. The Earl of Dudley was rated as follows: abie. Against this rate the Earl of Dudley appealed, on the ground that he was over-rated in respect of the yearly value of the lime-works and land by him occupied in the parish aforesaid. And also that under the denomination of lime-works were included certain mines of limestone, for which he was not liable by law to be rated. Rate quashed. Case. The appellant is the owner and occupier of lands in Sedgley, containing certain strata of limestone, and also of the works hereinafter mentioned, by and out of which the limestone is raised. The strata of limestone under these lands lie in a sloping position, and one stratum distinct and a considerable distance from the other, in the same manner as coal, ironstone, &c. The strata frequently crop out or terminate at the surface, and deepen in the opposite direction. Those parts of the strata which cropped out or terminated at the surface were worked by the appellant and his predecessors, in quarries, by day-light or open work, following the course of the strata as far as was practicable. The continuation of these strata, which were being worked at the time the rate was made, lie forty or fifty yards below the surface of the ground, and are worked in large excavations by means of pit shafts, steam engines, &c., in the same way as coal, ironstone, and other minerals, and no part of the limestone is now gotten in quarries or by open work. The produce is in part drawn up the pit shafts and in part sent off by an underground level or tunnel. A bridge was erected over a navigable river, pursuant to the provisions of an The proprietors erected a pier and an abutment. They were autho The only difference between these, which the appellant contends are limestone mines, and which are described in the rate as lime-works, and coal, and ironstone mines, is the position of the strata, the material gotten out, and the greater excavations in the former than in the latter. The only way into these mines or works is down the shafts or through the tunnel, which is wholly underground, a great part of it being upwards of fifty yards below the surface of the ground, the deepest part being at its junction with that part where the limestone is gotten. The limestone is gotten in large excavations made in the direction in which the strata run, which excavations communicate by headways or gate roads with the bottom of the shafts, and the works are lighted by candles or lamps, no part being open to day light. The working requires experience, and is carried on by persons who are brought up to the occupation, and are called limestone miners or limestone getters, as often one as the other. The limestone is conveyed along railroads from the part of the works where it is gotten, through the gate roads, one part to the bottom of the pit shafts, and the other part to the level or tunnel. That which is taken to the bottom of the pit shafts is drawn up by the steam engines, and the other part is sent off in boats along the tunnel. By far the greater portion of the limestone gotten by the appellant is sold in its raw state to the iron-founder for smelting iron, but a small portion (which by agreement is taken at a hundredth part of the whole) is burnt into lime by the appellant on his own land. There is no difficulty in finding the limestone, the pits being sunk, engines erected, and levels and tunnels made, and the mines or works opened and in operation. The profits of the appellant are certain, though subject to variations in consequence of frequent breakings off of the strata, and their being thrown into different directions, these increase the difficulty and expence of working, and render a fresh opening necessary. Limestone strata were lately found and worked in an adjoining parish to Sedgley, at a depth of more than a hundred yards below the mines of coal and ironstone. The coal and ironstone in that case were first gotten, and afterwards the limestone was worked by means of the same pit shafts which were sunk down to it. "Mines of limestone" are expressly mentioned in local acts of parliament, in the neighbourhood. The court, after C. A. V., determined that these were mines, and not rateable. Page 124.-Since the printing of this part of the volume, the case of Rez v. Inhabitants of Barnes, (a manuscript note of which was favoured by Mr. Steer,) has been published in 1 Bar. & Adolph. 113, as follows. Upon appeal by the Hammersmith Bridge Company against a rate or assessment for the relief of the poor of the parish of Barnes, in the county of Surrey, made the 14th day of April, 1829, and which said rate was allowed by two of his Majesty's justices of the peace, the court of quarter sessions allowed the appeal, subject to the opinion of this Court on the following case: -The appellants, as the proprietors of Hammersmith Bridge, were rated or assessed in the aggregate sum of 251., upon an annual value of 400l., in respect of land, on which they had erected a bridge, and made a road thereto, and in respect of the tolls which are payable therein. By an act of the 5 Geo. IV. c. 112, intituled, "An Act for building a bridge over the river Thames, from the hamlet of Hammersmith, in the county of Middlesex, to the parish of Barnes, in the county of Surrey, and for making convenient roads and avenues to communicate with such bridge," and which was to be taken as part of the case, certain persons being proprietors, and therein nominated the Hammersmith Bridge Company, their successors, administrators, mitted to pass or and assigns, were authorised to purchase lands and other hereditaments, to them, their successors and assigns, for making, erecting, and completing, the said bridge, roads, and ways, and for other purposes therein mentioned ; prietors took tolls and for that purpose, they were empowered to raise money, and to receive the profits arising from the tolls, rates, and emoluments, to be received by the said company in respect of the said bridge, which was by the said act declared to be a public bridge. Certain other powers were given to the company by an act made and passed in the 9 Geo. IV. for altering and relief of the poor amending the said act of the 5 Geo. IV. c. 112, and which act of the rized to erect return over or through the bridge. The pro at one side of the bridge only in parish A.: Held, that they were rateable to the relief of the parish B. 9 Geo. IV. was to be taken as part of the case. The Hammersmith Bridge for the land occuCompany purchased land in the parish of Barnes, on which they erected pied by them in and built the fixture pier or abutment of the bridge which was on the Surrey side, and the person who sold the land to the said company, on which the said fixture pier or abutment rested, had always been assessed by, and paid poor rates to, the parish of Barnes, in respect of the said land. Part of the road of approach to the said bridge on the Barnes side was purchased by the company, of a person who had always been assessed and paid poor rates to the parish of Barnes, in respect thereof. One half of the said bridge is in the parish of Barnes, and the other half in the hamlet of Hammersmith : the tolls for passing over the bridge, are paid and received on the Hammersmith side; no tolls are paid or received on the Barnes side, and no toll is demanded unless the carriage or passenger, &c., pass through the gate on the Hammersmith side; nor is there any toll-house or other building used or occupied by the company or their servants on the Barnes side. The appellants, the now proprietors of the bridge, contended that they were rated for land, and in respect of tolls, for which they ought not to be rated or assessed.—Bayley, J. (a). This is a very clear case. The proprietor of land is liable to be rated to the relief of the poor in the parish where the land lies. The Hammersmith Bridge Company have, in the parish of Barnes, lands used by them for the purpose of facilitating the passage over the Thames, and they are entitled to receive from all persons passing their bridge certain tolls. Then what is the character of their occupation of that land? It is a valuable occupation in respect of the money which the land produces to the company, by being appropriated to the purpose of facilitating the passage over the Thames, for which passage they receive tolls. The quantum is a question for the sessions. All that we decide is, that the land is rateable property in the place where it is situate. There the profit is earned, though the money may be actually received elsewhere.-Littledale, J. The tolls are payable for passing over the bridge, not for passing through the toll-gates. The gates are put up merely to prevent persons passing over the bridge without paying the toll.-Parke, J., concurred. Order of sessions quashed. tion of rate. P. 134. "Take notice, that a rate of one shilling in the pound will be What is a publicacollected forthwith," is a good publication of the rate, although it was not stated that it had been allowed by the justices. Bennett v. Edwards, 7 Bar. & Cres. 586. P. 159. A notion has prevailed that goods taken under a distress for poor's rate cannot be replevied, on the supposed ground that the rate having been made by overseers, approved by justices, published in church, not appealed against, and the party having been previously summoned, the process is in the nature of an execution. But that doctrine is unfounded. See 2 Nolan P. L. 483, 4; Fletcher v. Wilkins, 6 East's Rep. 283; Mulward v. Coffin, 2 Bla. Rep. 1330; Pearson v. Roberts, Willes, 661; Wilson v. Weller. 1 Brod. & Bing. 57;2 J. B. Moore, 417; 8 Taunt. 369; Rudd v. Foster, 4 Mod. Rep. 157. Fletcher v. Wilkins, 6 East. 287. The provisions of the 24 Geo. II. c. 44, requiring notice of action, do not extend to an action of replevin, where such an action of replevin was brought against overseers for distraining for poor's rates, and the Court said, "The statute 43 Eliz. c. 2, which is the foundation of the poor's rate, considers replevin as a proceeding in which the right to levy by distress any sums claimed on account of that rate may be properly controverted; for by the 19th section of that act, a form of avowry is given in case of a distress made: and the distress under that statute was in the nature of an execution; for the sums assessed for the relief of the poor are, by the 4th section, directed to be levied by distress and sale: and it would be going very far indeed, to say that so beneficial a remedy is indirectly taken away by the general words of the statute, 24 Geo. II., when the A distress for poor's rate may be replevied. (a) Lord Tenterden was not in Court when this case was argued and determined. |