A. & B.

IX.

A.

IV.

Ninth.
Tenth.

nor upon warehouses or other buildings occupied for the purpose of carrying on a trade or profession. The sums thus imposed, both in respect of the property and the occupation of the land, are to be paid in the first instance by the occupier, who, if he is a tenant, may deduct seven-pence in the pound from the rent which he pays his landlord, who may in like manner deduct seven-pence in the pound from any "rent charge, annuity, fee farm rent, rent service, quit-rent, feu-duty, teind duty, stipend to licensed curate, or other rent or annual payment, reserved or charged upon the land. (a)"

(a) It is remarkable that neither this section, nor any other part of the Act, contains any express provision for the common case of a landlord who remains in the receipt of rent, and pays interest to a mortgagee; and, indeed, none of the above expressions strictly apply to such a case. It may perhaps be held, and probably was intended, to come under the words "other annual payment charged upon the land." It is the more singular that it is omitted, as the case of the mortgagee in possession is proEleventh. vided for immediately after, and he is directed to allow a proportionate sum for duty in the settlement of accounts with the mortgagor. If the landlord were to be held not entitled to retain against the mortgagee, he would be placed in the situation, in the case above suggested, of allowing the tenant seven-pence in the pound on the whole rent, whilst he was only in the actual enjoyment of a part of it; and as the mortgagee, if he made no allowance to the mortgagor, would have to make a return of his income, and pay upon it, the land which perhaps yielded only £100 rent, out of which interest to the extent of £50 was payable, would be paying duty as upon £150 a-year; whilst, if the mortgagee took possession, the same land would, under the express provisions of the next section, only pay as on £100 a-year. This seems a most unreasonable conclusion, and it is submitted, though with some doubt, that there is enough in these two sections, and the other provisions of the Act with regard to interest, taking them together, to show that the intention of the legislature

Thus, supposing a tenant to occupy a farm, for which he pays a rack-rent of £100 to his immediate landlord, who pays a rent charge upon the same farm of £50, the tenant will, in the first instance, pay a duty of 10d. in the pound on the rent, amounting to £4: 7s. 6d. ; when he pays his rent he will retain seven-pence in the pound from his landlord, amounting to £2: 18s. 4d., and the landlord will deduct from the owner of the rent charge seven-pence in the pound on £50, amounting to £1: 9s. 2d., leaving, as his own share of the tax, a similar sum.

"WHETHER THE SAME BE SITUATE IN ONE OR MORE PARISH OR PARISHES."-When the party making the return occupies land in two or more parishes or districts, he must specify, in such account, the prowas that the mortgagor in possession should retain a proportionate amount from the interest he pays to his mortgagee. At any rate a mortgagee should be well advised how he resists such claim of retainer, for the 103d section of the Act provides, that if any person refuses to allow any deduction authorized by the Act from any payment of annual interest, shall forfeit, for such offence, treble the value of the principal money of the debt. Whether, if this construction be correct, the mortgagor is to retain under the above section, considering the interest to be an annual payment charged upon the land, or under the subsequent sections, treating the interest as an annual payment out of a chargeable fund, is a question of some difficulty, upon the decision of which depends whether the mortgagor should apply to the Commissioners for a certificate under the 105th section. See post, p. xxxv.

Wherever a party is entitled to retain he should be careful to avail himself of such right, for if he voluntarily pays the full amount without deduction, he will not be entitled to recover the amount of duty back again. See Denby v. Moore, 1 B. & Ald. 123; Andrew v. Hancock, 1 B. & B. 37; Graham v. Tate, 1 M. & S. 609.

§ 103.

A.

No. IV.
Second.

§ 83.

portionate value of the property he occupies in each of such parishes or districts, and deliver such account in each parish in which any part of the land which he occupies is situate, and he must, in the same account, specify and give a separate estimate of the land which he occupies under different owners. Where, however, land, in two parishes, is occupied by the owner, or by a tenant under one demise, and the Commissioners are satisfied that the proportion in each parish, in respect of quantity or value, cannot be ascertained, and the whole is comprised in one district, the occupier may be charged in either parish, or, if it extends into two districts, then in the district in which he resides.

If the occupier omits making such return in each parish, he is to be charged treble the rate for the land so omitted, beyond the penalties before mentioned.

Where in consequence of flood or tempest (a) loss has been sustained on growing crops, or stock on lands (b) held by a tenant at a reserved rent, without fine, or from the same cause any part of such farm has become incapable of occupation, and the landlord has in consequence made an abatement

(a) No provision is made for loss by accidental fire, epidemic disease amongst cattle, or other loss not occasioned by flood or tempest.

(b) There may be a doubt how far the Commissioners might be entitled to make an allowance for a stack of corn or hay, or for corn or hay cut but not gathered, destroyed by flood or tempest: they certainly would not come under the description of growing crops; and the other expression "stock" is generally used to designate cattle or sheep, or other live stock. By a wide construction this latter expression might perhaps be extended to such a case, but would certainly not include barns or other farm buildings.

from the rent, the Commissioners are empowered to discharge the duty in respect of the ownership to a proportionate extent, and also to abate a like proportion of the duty in respect of the occupation.

Where the landlord is an infant or lunatic, and in consequence incapable of making such abatement from the rent, the Commissioners may nevertheless make such abatement from the duty in respect of the occupation as they think ought to be allowed.

If the landlord is capable of consenting but refuses to do so, and holds the tenant to his agreement notwithstanding his loss, the Commissioners have no power to grant any abatement whatever to the tenant.

If the owner is himself in occupation of the land, the Commissioners may make such abatement from the duty in respect both of the ownership and occupation, as they consider the justice of the case requires.

No express provision is made for losses of this kind occurring on land held on lease at a rent below the value of the land, with fines payable at particular times or on renewal, and occupied by the lessee; such cases are expressly excluded from the operation of the 83rd section, the provisions of which would indeed be inapplicable to them; probably they would be held to come under the 85th section, as such a tenure is a beneficial ownership, and in that sense the lessee may be considered as the owner of such lands.

It has been thought better to go through these provisions with regard to the duty in respect of the occupation of land, and the calculations necessary for ascertaining the amount which will be payable in

b

§ 84.

§ 85.

A.

IV. Third.

A.

II.
Fourth.

Fifth.
Sixth.

A.

II.

A.

IV. Fourth.

particular cases, at some length, at the risk of being tedious, for two reasons: first, it seems difficult to extract any principle from the enactments on this subject; and, secondly, occupiers of land whom the section of the act under consideration particularly affects will, it is feared, even with such assistance as the writer has been able to afford, find its provisions obscure and difficult of construction.

The return must also comprise an account of all houses let by the party making it of a less value than £10 a-year, all lands let for a less period than one year, of all dues arising from manors or other royalties, fines received in consideration of demises, (a) of all tithes, dues and money payments in lieu thereof, and all compositions for tithes (except rent charges under the Tithe Commutation Act), and other unenumerated profits arising from land which the party making the return is entitled to receive, either in his own right, or as the lessee, tenant, agent, or factor of another. The assessment in respect of compositions, rents, or other payments in lieu of tithes, may, if the commissioners think fit, and give notice accordingly, be made upon the occupier of the lands from which they arise, instead of being made on the party entitled to the payment. The return must also include all other matters comprised in Schedules A. and B. of the Act, with the exception of any income which the party making the return may derive as a shareholder

(a) When any part of such fine has been laid out as productive capital, from which a chargeable profit has arisen or will arise within the same year, the Commissioners may discharge the assessment on the amount so applied. See Schedule A. II. Fifth.