1853. ROBERTS Overseers of Pashley, contrà. The question is now confined to the tolls paid in respect of goods sold on stalls. [Lord Campbell C. J. No. The payments to which the AYLESBURY. question is now confined are made for the privilege of using stalls and for exposing goods for sale and other purposes. It is quite immaterial whether the goods are sold or not. I do not see, on principle, any distinction between using the soil by placing a stall upon it, or, a table, or by placing goods directly upon it, or otherwise, if the soil be in fact occupied, and a consideration paid for its occupation to the owner or his lessee]. Such a liberty is like the way leave in Rex v. Jolliffe (a), which was held not rateable. There are no words in stat. 43 El. c. 2. s. 1., including this liberty; it cannot be comprehended under the term "lands.” Lord CAMPBELL C. J. The case is now reduced to a single point. Mr. O'Malley, in the course of the argument, very properly abandoned the claim to rate the market tolls, which have nothing to do with the occupation of the soil. But he successfully contended that what are called the stallage tolls are payments made to the appellants for the use of the soil for the time; and that, if so, the appellants are rateable for them under stat. 43 El. c. 2. s. 1. The person using a stall has for the time being the use and occupation of that part of the soil on which it stands. The compensation, which is paid to the owner of the soil or his lessee for the use of the soil in this way, is quite different in its nature from the toll payable to the lord of the market for goods sold; that toll is quite irrespective of the ownership or occupa (a) 2 T. R. 90. tion of the soil. Then, on general principles, whatever profit is made by the occupation of the soil is properly rated. I do not see on what principle the payments made in respect of the use of the stalls are to be distin guished from the tolls payable for way leaves, in the coal districts in the North, which are always rated. So far, therefore, as the rate is imposed on the Market House, and on the payments in respect of goods not sold, it is good, but not in so far as it is on the tolls or goods sold; and it must be amended accordingly. The parties have agreed as to the manner in which the amount is to be ascertained. COLERIDGE J. I perfectly agree. The persons here rated are not those who on market days use the stalls from time to time, and make payments to the appellants, for such use. Their occupation probably would be too fleeting to render them properly rateable. But the persons rated are the tenants for a term of years of what is in effect the use and occupation of the soil of the market place, on particular days, to be turned to profit in a particular manner. Rex v. Jolliffe (a) is quite consistent with our decision. two way leaves. One was over land occupied jointly by himself and another. If the use of the way leave rendered that land more valuable, that was or ought to have been taken into account in the rate imposed in respect of the land on himself and his cotenant. The other way leave he used; but he had no occupation of it; he paid to the occupier of the soil a toll for each ton of coals There the appellant used (a) 2 T. R. 90. 1853. ROBERTS v. Overseers of which he carried along it. He was, in respect to that way leave, much in the same situation as the persons, in the present case, who come to market and make a AYLESBURY. payment for the temporary use of a portion of the soil. That case therefore was properly decided, and is perfectly consistent with the principle on which we now act. WIGHTMAN J. Stallage may be considered as a compensation, in the nature of ground rent, paid by the person who for the time uses a portion of the soil to the owner who permits him so to do. Mr. Pashley's argument consisted in applying the term toll to this, and then arguing that, as tolls were not rateable, this was not. But it is in the nature, not of toll, but rather of ground rent. CROMPTON J. I am of the same opinion. The appellants occupy the land on market days by means of persons who pay them for leave to use it. They are occupants of land; and in that way they make a profit from their occupation; and they are properly rated in respect of such their beneficial occupation. Rate to be amended on this principle. 435 1853. The QUEEN against The Inhabitants of Reported, 14 Q. B. 340. DUGDALE against The QUEEN. THE defendant was indicted at the Middlesex Sessions. It is a misde meanour to procure indecent prints publish them. But to pre serve and keep session with them in pos such intent is not a misde meanour. The indictment contained seven counts. The first count charged that defendant, "unlawfully with intent to and wickedly devising, contriving and intending, as much as in him lay, to vitiate and corrupt the morals of the liege subjects," "and to incite and encourage the said liege" &c. "to indecent, obscene and immoral practices, and bring them to a state of wickedness, lewdness and debauchery, heretofore, to wit on" &c., at &c., "unlawfully, wickedly, knowingly, wilfully and designedly, and in order to effect and bring about such his most wicked devices and contrivances, did obtain and procure divers, to wit one hundred, indecent, lewd, filthy, bawdy and obscene prints, and divers, to wit one hundred, indecent, lewd, filthy, bawdy and obscene pictures, then and there respectively tending to scandalize and debase human nature, and then and there representing and exhibiting" &c., "in order and for the purpose of afterwards unlawfully uttering, publishing, selling and disseminating, and causing to be uttered, published, sold and disseminated, the said prints and pictures, to and amongst the liege" &c., "and thereby contaminating, vitiating and corruptE. & B. VOL. I. 2 G 1853. DUGDALE ing the morals of the said liege" &c., "and bringing the said liege" &c. "to a state of wickedness, lewdness, The QUEEN. debauchery and immorality. In contempt" &c., to the evil example &c., and against the peace &c. V. The second count charged that defendant, "unlawfully and wickedly devising and contriving, as in that" (the first) "count also mentioned, afterwards, to wit on" &c., at &c., “unlawfully, wickedly, knowingly, wilfully and designedly, did preserve and keep in his possession divers, to wit one hundred," &c. (as before), "with the intent and for the purpose of unlawfully and wickedly uttering," &c. (as in the first count). The other counts were for different offences, but were framed, as to the points upon which the Court decided, like either the first or second count. Plea: Not guilty. Issue thereon. The defendant having been found Guilty, judgment was passed upon him, separately upon each count: whereupon he brought error in this Court. Joinder in error. W. J. Metcalfe, for the plaintiff in error. The question on the first and corresponding counts is, whether the procuring obscene prints with intent to publish them be a misdemeanour at common law. The counts charge no attempt to publish. On the second and corresponding counts the question is, whether the possessing with intent to publish be a misdemeanour, no act at all being charged. [Lord Campbell C. J. As to those counts, the defendant below might have procured the prints without the intention of selling them, and have afterwards conceived the intention: then there would have been nothing |