verted to on account of the general provision in section 93, "that the rate shall be payable according to the actual amount of the rent where the same can be ascertained, and where the same cannot be ascertained, then according to such rent as such inhabitant shall be assessed for the house tax."

Now, when we refer to the Act for assessing the house tax, 48 Geo. 3. c. 55, and to the schedule (B), we find the assessment is at certain rates where the houses shall be worth the rents after-mentioned, and then follows the scale of rents and the assessment in the pound. This, though not forming part of the Act in question, is well worthy of notice as shewing the use of the word "rent" as signifying the rent which a house is worth, which is, in other words, the yearly worth or value. For although the actual rent is to be the guide when it can be ascertained, this must mean the actual rent when it represents the value, not where, from other conditions under which it is paid as rent, it is no criterion of value at all.

And the same reasoning we think applies to the Act in question. The word "rent "cannot signify strictly the rent actually or accidentally paid. In a row of houses all of equal value one might be let at a nominal rent from love and affection, another might be let at a greatly reduced rent to a servant in the employ of the landlord. Another might yield a small rent because the tenant had repaired the house himself or paid a premium, and no one could contend that in any such cases the actual rent would be the criterion. It would not be the criterion in any case in which it does not form a means of comparison with other houses as regards their worth. In general the rent paid is what the house is worth, and is the real criterion of value as distinguished from estimates. It makes a fact the test, which is certain and excludes partiality.

Having arrived at the conclusion that the actual rent is not necessarily the rent referred to in section 79, but the proper rent for the houses, which would in general correspond with the actual rent of small houses let at weekly rents, it follows, as

we think, that the proper rent must be ascertained by some regular and fixed standard, and not by a standard depending upon whether the house is let or occupied by the owner, or is let for more or less than three months, or is of a greater or less value than a particular sum, or upon the application of certain Acts of Parliament to the property, or upon the particular arrangement made between the landlord and tenants.

Now upon the proper construction of section 79, standing by itself, supposing no subsequent Act of Parliament on the subject of rating to be applied to the premises, the rent paid by an ordinary tenant, who himself paid all the rates and charges properly borne by occupiers, would clearly satisfy the word "rent."

It may appear that this would be so only as regards houses of, or above the annual value of 101., because as regards houses not exceeding that value, by section 72 of the general Act, the Waterworks Clauses Act, 1847, the owners of such houses are liable to the water-rate instead of the occupier, so as to make the water-rate necessarily, as regards such houses, part of the rent; but this is an apparent objection only. It would be an objection if the word "rent" in the clause in question must signify the rent which the tenant pays, whereas the more reasonable meaning is, what rent the premises are worth as rent under ordinary conditions.

The word "rent" may, we think, be read to mean what the landlord gets as rent under the usual conditions, though technically this is not its meaning; and if the landlord is obliged to pay the waterrate, all that he gets as rent, and all that ought to be taxed as rent, is the whole payment after deducting what he is obliged to pay.

The same reason applies with equal force to the payment for poor-rates and district rates.

We thus hold the word "rent" in section 79 to mean the proper rent to a tenant paying the rates and charges regularly paid by the tenant, of which the actual rent, when the tenant does pay those rates and charges, is in general the proper criterion. And this is the same

thing as the yearly worth or annual value. And by so holding we escape from the inconsistency of rating the premises upon a different standard according as the value of the premises makes the actual payment of the rates fall upon the tenant or landlord.

The words "rent" and "annual value " are often used indiscriminately, and we think they are so used in section 68 of the general Act and section 79 of the special Act. As another instance, although it is not allowed to refer to the marginal reference in construing the clause in an Act of Parliament, yet one may do so in considering the general sense in which words are used; and section 72 of the Waterworks Clauses Act, 1847, makes the rate payable by the landlord when the annual value of the premises does not exceed 107. The marginal note is, "owners of houses not exceeding 101. rent to be liable to the rates."

We have referred to the various authorities cited in the course of the argument. We do not think the settlement cases have any real bearing upon a case like the present, where we are considering a system of rating houses. But it may be noticed that it would appear that the case of The King v. St. Paul, Deptford (3), was decided because the Court felt bound by a previous decision in The King v. Framlingham (4); and as regards The King v. Thurmaston (5), the words of the Acts of Parliament referred to were as to one of them that the house must be bona fide hired for 101. by the year, and the rent paid for one year; and as to the other that the house must be rented at 101. a year, and the rent actually paid for that term, so that the payment by the tenant of the rent of 101. for one year is the criterion of settlement, a reason which does not apply to the present case at all.

The case of In re Elstone and Rose (6) raised a question as to the jurisdiction of the County Court Judge, and the grounds of the decision do not at all assist the decision in the present case.

In The Queen v. Bilston (7), a poorrate case, it was held that the water-rate ought not to be deducted from the amount 11. 5s., found as a fact by the sessions to be the gross rental, on the ground that it did not come within any of the deductions allowable under the Parochial Assessment Act, 6 & 7 Will. 4. c. 96. s. 1.

In that case there was nothing in the nature of a water-rate, but the water was supplied at the option of the inhabitants, and the agreed rent paid by landlord or tenant as arranged between them. The Court held it clear, and could not do otherwise, that the water-rate was not a tenant's rate or tax; and that it did not come within the other head of deduction as an expense necessary to maintain the premises in a state to command the rent, any more than the supply by agreement of meat or any other necessary of life would have done so. The case, therefore, has no bearing upon the question in the present case, which is how the compulsory water-rate is to be imposed. In the present case all the deductions claimed are in respect of charges, which are the subject of rates and compulsory so far as the property is concerned.

But the case mainly relied on by the plaintiffs was that of Rook v. The Mayor of Liverpool (2). According to the marginal note, that case would be a strong authority in their favour, and if the question in that case raised and decided had not been complicated by an agreement between the parties, which was relied on in the judgments, and in fact formed the foundation of them, we should have felt bound by the decision upon a question of such a general nature as rating, and decided accordingly.

In that case the water-rate was to be upon the annual value of the premises, and there was a power to compound where the yearly rent or value did not amount to 131. There had been a composition-paper by which the appellant agreed to compound for the water-rates, and in a schedule the rental of the two sets of premises was stated to be 48. 6d. per week and 3s. 6d. per week respec

(7) 35 Law J. Rop. (N.s.) M.C. 73 ; s. c. Law Rep. 1 Q.B. 18.

tively, and there was a proviso that in case the rentals were not correctly stated the corporation might insert the correct rentals, and recover the water-rates accordingly. It appeared that in fact the rentals were 6d. week more in respect per of both rents of premises, the landlord claiming to deduct the 6d. for the rates paid by him. The Court held that in that case the appellant must be rated to the full amount, but not, as I think, because that would be the correct mode of rating, independently of the terms of the composition, but because the appellant had agreed to make the actual rent the criterion, or rather the corporation had a right to act upon his having so agreed. Erle, C.J., in the course of the argument, says (8)-"You say the written contract between the parties is on the rental and with a view to that alone, and that for aught that appears, the council would not have entered into it upon any other footing." And the whole of his judgment afterwards given is to the same effect. The conclusion of it is, "My judgment is founded upon the terms of the composition-paper which is before us." Willes, J., says "It seems to have been agreed on both sides that the rent should be taken to represent the value." So that no judgment whatever is given upon the general question of annual value, but only upon the proper construction of the composition-paper. There is no such

question before us now, and therefore the decision does not in any way conflict with the reasons which we have given for the conclusion arrived at.

For the reasons above given we think that in determining the class to which the houses belong the actual rent paid by the tenant is not to be taken, but the sum which comes into the landlord's pocket as rent, after the deductions for waterrates, poor-rates and district rates, whereever he pays them.

Judgment for the defendant.

Attorneys-Pitman & Lane, agents for Albert Smith & Son, Sheffield, for plaintiffs; Pattison, Wigg & Co., agents for Bromhead, Wightman & Moore, Sheffield, for defendant.

(8) 7 Com. B. Rep. N.S. 257. NEW SERIES, 41.-EXCHEQ.

1872. June 22.

}

CURTIS (appellant) v. EMBREY (respondent).

Statute, Construction of-Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), ss. 3, 38, 45-Carriage Plying for Hire without License.

A piece of ground, the property of a railway company, is not-though used as an approach to a station, and though not fenced off from the public highway- a "street" or "road" within the meaning of the 3rd section of the Town Police Clauses Act, 1847, so as to render persons who by agreement with the company keep carriages standing there, liable to a penalty for allowing carriages to ply for hire without a license.

In a lease the demised premises were described as "all that plot of land bounded on the east and north by newly made streets, a plan whereof is indorsed on these presents,' and the lessee covenanted "to kerb the causeways adjoining the said lands." The site of the new streets was marked as such in the plan indorsed :-Held, that this amounted to a grant of a right of way along the proposed new streets to the land demised.

Declaration in trespass quare clausum fregit.

Pleas-first, of a public right of way over the locus in quo; second, of a private right of way granted by a lease of the 1st of November, 1851, for ninety-nine years, from Lord Stafford to one Smith, under whom the defendant claimed as assignee of the lease.

In the lease the premises were described as "all that plot of land situated at Castledown, in the parish of Castle Church, in the county of Stafford, bounded on the east and north by newly made streets, on the west by premises demised to Henry

2 I

Harrod, and on the south by land belonging to the said Lord Stafford; containing on the east side thereof forty-five yards, on the west forty-two yards, and north and south twelve yards (a plan being indorsed on the lease which shewed 'new streets' in those positions), together with all dwelling houses, buildings and erections, which during the term should be erected on the said plot of land; and all ways, waters, watercourses, lights, easements and appurtenances to the same premises belong ing." There were covenants by the lessee to build upon the land two dwellinghouses, with all necessary out-buildings and fences, and expend thereon 300l. at the least; and to kerb the said causeways adjoining the said land with proper kerb

stone.

It appeared at the trial before Byles, J., at the Staffordshire Spring assizes, 1872, that in 1851, when the lease was granted, the strips of land to the north and the east, each delineated and described on the plan as 66 new street," were on the east a piece of rough waste ground, and on the north a piece of land indistinctly marked out as a street or intended street, on the north side of which a house was built or begun. A house had been built in pursuance of the lessee's covenant, at the north-east corner of the land demised, within a year or little more of the date of the lease. This house, where it abutted upon the north-east, had its corner cut off and presented the base of a triangle towards the point at which the prolongation of the two sides would meet to the north-east of the house. It had a front door opening into the street to the north, and a yard and gate opening into the intended street to the east, where the defendant had been used to receive cartloads of coal and other articles, until the way round the corner and along the intended street was obstructed by the gate or fence erected by the plaintiff, the breaking of which constituted the trespass complained of.

There were at the time of the trial public highways to the west and to the north-east of the intended new street upon the north, and communicating with it; but the intended new street to the east, terminating to the south in a drain,

was still rough ground, and for the most part impassable as a road.

At the trial of the cause the plea of a public way was given up, and Byles, J., directed a verdict for the defendant upon the plea of the private way, but with leave to the plaintiff to move to enter a verdict for himself upon that plea also.

A rule having been obtained accordingly,

A. S. Hill and Anstie shewed cause for the defendant, contending that, according to the lease and the plan, there was an implied grant of a way over the intended streets to the land demised; that a public and a private way right may exist together-Duncan v. Louch (1), Wood v. Veal (2); and that the lessor was estopped by the terms of the lease from denying the existence of the way-Roberts v. Karr (3), Randall v. Hall (4).

H. Matthews and J. O. Griffits, in support of the rule, argued that the word "street in the lease meant a public street, and was inconsistent with a private way-The Queen v. Chorley (5); that the word was here only used as a description of a boundary-Harding v. Wilson (6). They also cited Dodd v. Burchell (7), Rashleigh v. The South Eastern Railway Company (8), Pinnington v. Galland (9), and Whalley v. Tompson (10).

Cur. adv. vult.

KELLY, C.B. (on June 8), after stating the facts as above, said-The question we have to determine in this case is, whether a private way was granted by the lease of 1851 together with the plan endorsed upon it; and we are of opinion that such was the effect of the lease. The house was built as contemplated by the lease, abutting upon each of the two intended

(1) 6 Q.B. Rep. 904, 915; s. c. 14 Law J. Rep. (N.S.) Q.B. 185.

(2) 5 B. & Ald. 454, 457. (3) 1 Taunt. 495.

(4) 4 De Gex & S. 343.

(5) 12 Q.B. Rep. 515.

(6) 2 B. & C. 96.

(7) 1 Hurl. & C. 113; s. c. 31 Law J. Rep. (N.S.) Exch. 364.

(8) 10 Com. B. Rep. 612.

(9) 9 Exch. Rep. 1; s. c. 22 Law J. Rep. (N.s.) Exch, 348.

(10) 1 Bos. & P. 371.

new streets, and it is obvious that unless a grant was expressed, or is to be implied in the lease, of a way of some kind along both the north front and the east front of the house to be built, it would be impossible for the lessee to bring materials for the building which he had covenanted to erect upon the land, or to go into or out of his house on the north side or the east side whenever it should be built. And as the land was bounded to the west by land leased to Harrod, upon which a house was also to be built, and on the south by land of the lessor's from which there was no approach or access to the land leased, the house so covenanted to be erected could not be built at all; and if, or when built, would be absolutely unapproachable and inaccessible. It must therefore have been intended by the parties that there should be either a public way or a private way, or a way of necessity. Now the claim to a public way was properly given up at the trial, inasmuch as it is clear that no public way existed to the east or to the north of the intended house at the time of the lease; and although it may be inferred from the delineation upon the plan of what were called " new streets to the east and to the north, that it was intended by both lessor and lessee, and indeed expressed in the lease, that there were to be streets then made or afterwards to be made, and though it was possible that a covenant might be implied that new streets should there be made, there is nothing in the lease to bind the lessor to make them public streets or to dedicate them to the public; and it was competent to him to make them into private streets for the use only of the lessees of the houses to be built upon the lands demised.

The existence of a public way being thus negatived, it was contended by the learned counsel for the plaintiff that all that could be inferred or deduced from the lease and the facts of the case was, that the lessee had acquired a way of necessity. But a way of necessity exists only where the land conveyed or demised is surrounded by other lands of the grantor, and cannot be approached but by a way over the grantor's land where no way exists, and which thus becomes a way of

necessity. But here the lessor, by the grant, has expressly described the land demised as abutting upon strips of land of his own to the north and the east, which he himself in the lease describes as newly-made streets, and which are distinctly delineated upon the plan, and therein called "new streets." The lessor therefore is estopped from denying that there are streets which are in fact ways, and which ways run along the north and the east fronts of the houses to be built on the demised lands, including the defendant's house, and of which streets or ways the way claimed in the plea to this action is a part. We should have thought this point clear upon the obvious and necessary construction of the lease and plan, but the case of Roberts v. Karr (3) is a direct authority to that effect. There, one Pratt granted a piece of ground to Compigné (under whom the defendant claimed), described as abutting east on a new road. It appeared that between a public road and the abutment in question there was a strip of land, the property of the grantor, but upon which no road existed at the time of the grant. The defendant pleaded a public right of way over this strip of land, and it was held that the grantor and those claiming under him were concluded or estopped from denying that there was a road or way over this piece of land; Sir J. Mansfield, C.J., observing, in the judgment delivered, "If you (the lessor) have told me in your lease this piece of land abuts on the road, you cannot be allowed to say that the land on which it abuts is not a road." Lawrence, J., observes, "If a man buys a piece of ground described as abutting upon a road, does he not contemplate the right of coming out into the road through any part of the premises?" Here the land is described as abutting upon "newly made streets," and the case is an authority to shew that the grantor is estopped from denying that the strips of land, his property, are what he describes them to be, that is to say, "streets," which they cannot be unless there be a way through and along them.

And

Harding v. Wilson (6), cited in argument for the plaintiff, is in effect also an authority for the defendant. There a