occupation of land, such as mines other than coal-mines, rights of common, and tolls.

[WIGHTMAN, J.-The question in all cases is, what would a tenant give for the tenement as the person rated has it?]

Yes; and in many counties the value of the occupation of the land is very much deteriorated by the right of shooting and preserving game being in the hands of others than the tenant himself.

Overend and West, contrà.-By the statute of 43 Eliz. c. 2. and the 6 & 7 Will. 4. c. 96. s. 1, every occupier of land is liable to be rated; and the question is, what would a yearly tenant give for it?

[HILL, J.-Give for what? for what he actually gets, or for what he might get ?]

For the accommodation or return which the land is reasonably capable of giving. It is immaterial what arrangement may be made between the landlord and tenant. Suppose a covenant in a lease not to cultivate in a particular way, or only in a particular way, that cannot be taken notice of in assessing to the poor-rate. A man is rateable for the whole of what he holds, although he does not actually occupy, or use, or enjoy the benefit of the wholeThe King v. St. Mary, Durham (6), The King v. Aberystwith (7). The King v. Macdonald (8) shews that tolls are rateable if in the remotest way connected with the occupation of land. The statute 1 & 2 Will. 4. c. 32. has not affected the legal operation of such arrangements as the present; the right is, therefore, in the tenant, whether he can exercise it or not, and he is liable to be rated-The Queen v. the Marquis of Salisbury (9).

WIGHTMAN, J. (10)-I am of opinion that the Sessions were right. The tenant is only liable to be rated to that which he at present beneficially occupies, and the effect of the reservation in the agreement, coupled with the act (1 & 2 Will. 4. c. 32), is to separate the right to the game and

shooting from the other beneficial occupation. It was urged, as a strong argument in favour of the tenant's liability, that if he be held entitled to have his rating reduced, the parish would lose altogether the advantage to be deduced. from the enjoyment of the right of shooting, because Lord Scarborough and his licensee cannot be rated to it. That argument would be equally available in the case of a demise made previously to the act; but it is clear that in the case of such a demise the right to the game would have been taken away from the occupier, and no one could have the beneficial occupation increased by the right to shoot, and no one could have been rateable in respect of the shooting. There may be some hardship, but there can be no doubt that the statute recognizes the legality of such a reservation as the present; though the tenant has his land at a much lower rental in consequence of this reservation; the effect of it, however, is to separate the two tenements, and all that the tenant has the occupation of is the land simply as pasture land.

CROMPTON, J.-I am also of opinion that the Sessions were right in point of law. It may lead to hardship: but we must look at what the law is, and although the farm may be rendered less productive, the Sessions saw no beneficial occupation of the tenant beyond that of pasture, and that is all that we can look to. In The Queen v. Williams it was held that the right of killing game raised the value of the farm in the tenant's hands, or that the price paid for that right might be taken into consideration in calculating the rateable value; and this supports the view that, whilst he had the farm without the shooting he would have been rightly rated at so much less. The question really is, what does the tenant take? And if (whether, under the statute, it be by reservation or by contract between the parties) he takes the land only, without the privilege of shooting, the value of the occupation is so much the less. The demise is the land only, without the privilege, and it is in respect of the land only that he is rateable. This is not like the case where a man has a demise of the whole of a house, and only chooses to occupy a portion of the pre

mises, for then he is liable to be rated for the whole; but if part of the premises be excepted out of the demise, and the demise be of part only, he is rateable for that part only.

HILL, J.-The true question is, what is the hereditament of which the person rated was the occupier? Was the right of shooting separated from the land? The present tenant took the land as distinctly separated from the right of shooting, as if Lord Scarborough had himself previously granted the right of shooting to some third person, leaving in himself only the land subject to the privilege. In either case he granted to the tenant that hereditament subject to that right, and that hereditament alone. In The Queen v. Williams a tenant was held liable to increased rating by reason of his having acquired the right of shooting; but if the respondents' contention be right, it was immaterial whether he had the right or not, and the question could not have arisen.

1859. Jan. 22,

Order of Sessions confirmed.

THE QUEEN v. THE INHABIT-
ANTS OF KENDAL.

Order of Removal-Appeal-Grounds of Appeal-Service of fresh Grounds after Adjournment-4 & 5 Will. 4. c. 76. s. 81.

The appellants, fourteen days before the next Sessions, served the respondents with a notice of prosecuting an appeal against an order of removal, accompanied with a statement of grounds of appeal. At the Sessions, the appeal was accordingly called on, and when the respondents' counsel was beginning to state his case, the appellants applied to have the hearing adjourned to the next Sessions, on the ground of the absence of a material witness, and the Court adjourned it accordingly. Fourteen days before the next Sessions, the appellants served another statement, containing fresh grounds of appeal, and at those Sessions the Court quashed the order of removal on evidence given in support of one of the fresh grounds-Held, on the authority of The Queen v. Derbyshire (1), that, under the

(1) 6 Ad. & E. 912, n. b; s. c. 7 Law J. Rep. (N.s.) M.C. 91.

4 & 5 Will. 4. c. 76. s. 81, the appellants had power to serve the fresh grounds of appeal, and that the Quarter Sessions were right.

The Queen v. Arlecdon (2) distinguished.

On an appeal against an order for the removal of Ellen Williams and her two children from the township of Kendal, in the county of Westmoreland, to the parish of Liverpool, the Quarter Sessions quashed the order, subject to the opinion of the Court of Queen's Bench on a CASE; the following being the material parts:

The respondents served the appellants with the order, notice of chargeability, and grounds of removal on the 26th of January 1856, the settlement set up being a birth settlement of the pauper's deceased husband in the appellants' parish. On the 25th of February, the appellants served the respondents with a notice of their intention to appeal at the then next Quarter Sessions; and, on the 24th of March, they sent the respondents a notice of their intention to prosecute the appeal at the then next Quarter Sessions, accompanied by grounds of appeal, relying chiefly on different settlements of the father of the pauper's husband. Under the foregoing statements of grounds of removal and grounds of appeal, the appeal was called on at the Quarter Sessions holden on the 9th of April, and when the counsel for the respondents was beginning to state the case of his clients, the counsel for the appellants interposed, and applied to the Court to adjourn the hearing of the appeal to the then next Sessions, on account of the absence of a material witness (who, it was proved on affidavit, had been subpoenaed, but was too ill to attend). The Quarter Sessions thereupon, without going into the merits of the case, or hearing witnesses on either side, ordered that the hearing of the appeal should be adjourned to the next Quarter Sessions, on account of the absence of a material witness, on payment of the costs of the day by the appellants. Fourteen clear days before the commencement of the next sessions, the appellants served the respondents with

(2) 11 Ad. & E. 87; s. c. 9 Law J. Rep. (N.s.) M.C. 9.

fresh grounds of appeal, which comprised some of the old grounds of appeal, but omitted some of them, and substituted others.

At the next Sessions, holden on the 2nd of July, the appeal was again called on, and the respondents proved their case, viz., a birth settlement of the pauper's husband in the appellants' parish, &c. The counsel for the appellants then proposed to prove a birth settlement of the mother of the pauper's husband in the parish of Llanfair, this being one of the new grounds of appeal, and totally distinct from any of the old grounds. This was objected to on the part of the respondents, on the ground that the appellants were precluded by law from giving evidence in support of any ground of appeal which they had not served on the respondents fourteen days at least before the first day of the former Sessions. The Court reserved the point, and permitted the appellants to proceed, and they confined their evidence entirely to the proof of the above ground of appeal. witness, on account of whose absence the hearing had been adjourned, was not produced, nor did the appellants give evidence as to any of the former grounds of appeal. The Quarter Sessions decided that the appellants had proved their case under the above ground of appeal, and quashed the order of removal.

The

The question for the opinion of the Court was, whether the appellants, under the above circumstances, were authorized by law to serve the respondents with fresh grounds of appeal after the first and before the second Quarter Sessions; and whether the Quarter Sessions were right in permitting evidence to be given by the appellants, in support of the above, being one of the fresh grounds of appeal.

If the Court should be of opinion in the negative, the order of Sessions was to be quashed, and the order of removal confirmed; if in the affirmative, the order of Sessions was to stand confirmed,

Pickering and E. B. Dawson, in support of the order of Sessions.-The 4 & 5 Will. 4. c. 76. s. 81. merely enacts, that the appellant overseers shall, with the notice of appeal, or fourteen days at least before the first day of the sessions at which such appeal is intended to be tried, deliver to the re

spondents a statement of the grounds of appeal; and it shall not be lawful for the appellant overseers to be heard in support of the appeal, unless such notice and statement shall have been given. Here the notice and grounds have been given. It is quite competent to the appellants to serve fresh grounds. How have the respondents been prejudiced? The statute cannot have the effect of binding the appellants to the first statement they may have made. Suppose the grounds had been served thirty days before the first sessions, they might have abandoned them and served fresh, and there is no distinction between the two cases in point of principle. However, the point is concluded by authority. In The Queen v. Derbyshire this Court determined that the appellants had a right to serve a fresh statement before the second sessions, when the appeal had been entered, and adjourned at the first through press of business. The Queen v. Arlecdon the appeal had been tried out at the first sessions, and was merely adjourned for the Court's consideration.

In

Huddlestone, contrà.-This case is not distinguishable from The Queen v. Arlecdon. The first Sessions here had entered upon the appeal; and in that case, Lord Denman, C.J. points out that in The Queen v. Derbyshire the appeal had simply been entered and respited. The hearing in July was merely a continuance of that in April; and, according to the letter and spirit of the 81st section, the original grounds of appeal were the only grounds of appeal that were delivered fourteen days before the sessions at which the appeal was intended to be tried.

[HILL, J. referred to The Queen v. Staffordshire (3).]

That case is in the respondents' favour. The respondents went to the first Sessions, prepared to try on the then grounds; they ought not to be prejudiced by the Court ex gratia permitting an adjournment in favour of the appellants.

[CROMPTON, J.-It might have been. made a part of the conditions of adjourning that no fresh grounds should be served.]

(3) 12 Law J. Rep. (N.s.) M.C. 9; s. c. 2 Dowl P.C. 353.

WIGHTMAN, J. (4)—The question for us is, "whether the appellants, under the circumstances, were authorized by law to serve the respondents with fresh grounds of appeal after the first and before the second sessions." The circumstances are these. Certain grounds of appeal were served on the respondents in due time before the first sessions; and at those sessions as soon as the appeal was called on, and when the counsel for the respondents was beginning to state his case, the counsel for the appellants applied to the Court to adjourn the case to the next sessions, on the ground of the absence of a material witness, and the Court thereupon ordered the hearing to be adjourned on that ground. The circumstances are much the same as if, at the very moment the appeal was called on, just before it was named by the officer of the court, the appellants had asked to respite the appeal; and the mere fact of its having been called on, and counsel beginning to state his case, makes no substantial difference. That being so, then comes the question whether, under the terms of the 81st section of the 4 & 5 Will. 4. c. 76, the appellants were at liberty to deliver fresh grounds of appeal in due time before the next sessions. By that section the appellants are, with the notice of appeal, or fourteen days at least before the first day of the sessions at which the appeal is intended to be tried, to deliver to the respondents a statement of the grounds of appeal"; and it is said, giving a strict construction to the section, that if the appellants intended to try at the first sessions, they were not at liberty to give fresh grounds before the second sessions. There are two cases on the subject: the first is The Queen v. Derbyshire, in which the appellants, as here, had duly served grounds of appeal before the first sessions, but in consequence of press of business the appeal stood over till the next sessions. It may be taken that the parties did intend, and would have tried at the first sessions but for the press of business: for there is nothing to shew that they were not both ready and willing to try; but the case being thus

(4) Lord Campbell, C.J. was in the Court for Crown Cases Reserved.

adjourned, fresh grounds were served before the next sessions, and the appellants relying on these fresh grounds, the counsel for the respondents then contended that the service of the grounds of appeal was bad, under the 4 & 5 Will. 4. c. 76. s. 81, as not having been given fourteen days. before the Epiphany (the first) Sessions, at which the appeal was intended to be tried. The Sessions refused to hear the appeal, but this Court determined that they were wrong. No doubt this case does appear very much in point for the appellants; but the subsequent case of The Queen v. Arlecdon was said by the respondents to favour their view. That case, however, is distinguishable from The Queen v. Derbyshire, inasmuch as in The Queen v. Derbyshire no trial had taken place, though the appeal had been intended to be tried at the first sessions; but in the other case, not only was the appeal intended to be tried, but it was actually tried out at the first sessions, and was ripe for decision; and The Queen v. Derbyshire was cited and distinguished. No case has in any way overruled the first decision; indeed, it was recognized in the subsequent case; and therefore, as I think it governs the present case, there must be judgment in favour of the appellants.

CROMPTON, J.-On reading the 81st section without reference to any authorities, it might have been thought that it had reference to the sessions at which the appellants had the original intention of trying; but I think The Queen v. Derbyshire has settled the construction of the act to be otherwise, and it would be dangerous to interfere with what has become the established practice since that decision (5). I understand the Court in that case to have held the service of the second grounds of appeal good, not because the original intention was to try at the second sessions, but because they thought, if there had been no trial before, it was "intended to try" at the subsequent sessions, whether the appellants had any original intention to try at the first or not. The Queen v. Derbyshire has therefore decided that,

(5) This was stated by the counsel for the appellants in the course of the argument.

under circumstances like the present, the appellants may give fresh grounds. Suppose grounds of appeal had been served twenty days before the first sessions, the appellants are not bound by them, but may give fresh grounds as long as they are in time; and I do not see why they may not give fresh grounds fourteen days before the sessions at which they then intend to try. This case, at all events, falls more within The Queen v. Derbyshire than The Queen v. Arlecdon; for in the latter the appeal had been tried out, and it went over simply in consequence of an equal division of the Bench. The facts of the present case seem to me clearly within The Queen v. Derbyshire; for I cannot think that we ought to draw any minute distinction from the matter having been momentarily before the Court; in effect, the appellants were putting off the trial altogether, for the Court could not have adjourned the case after the hearing was commenced on the ground of the absence of a material witness, any more than this would have been done at Nisi Prius before the new practice. Then, as to the expense: the respondents are entitled to ask for costs of the day when the hearing is adjourned, and to have it made part of the order, as was done in the present case; so they may ask, and if the Court think it reasonable, it may be made part of the terms on which the adjournment is ordered, that no fresh grounds of appeal be served.

HILL, J.—I am of the same opinion. The appeal was actually tried and decided at the July Sessions, and fourteen days before those sessions new grounds of appeal had been served. Was it intended when those grounds were served to try the appeal at the then next sessions? Clearly: and the appellants therefore have complied in terms with the 81st section. But it is said, that the section must mean before the sessions at which it was first intended to try, and possibly, giving a strict construction to the section, that might be so; but The Queen v. Derbyshire has put a contrary construction on it. A practice, we are informed, has been introduced in consequence of that decision, and it would be highly improper to disturb it, more particularly as no injustice need be done; because when an adjournment is asked for NEW SERIES, XXVIII.—MAG. Cas.

Certain debts, accruing chiefly during the two previous years, from the guardians of a union to tradesmen, amounting to 23,000l., and a debt, accruing during several years, from the guardians to the treasurer of the union by reason of their overdrawing their account, remained unpaid at Christmas 1856, through the frauds and embezzlements of the collector for nine parishes of the union and of the assistant clerk to the union. The collector was appointed for the nine parishes by the guardians of the union (which consisted of ninety-eight parishes), and his appointment was confirmed by the PoorLaw Board. He collected the whole of the rates for the nine parishes, and was ordered by the guardians to pay all that he collected to the treasurer of the union, to be placed by the clerk of the union to the credit of each of the nine parishes respectively. By collusion between the collector and the assistant clerk, these parishes were credited in the union ledger with large sums for rates collected by the collector, but which were never, in fact, paid over by him to the treasurer, but which were embezzled by the collector. The parochial accounts had been audited up to September 1856 upon false accounts concocted by the collector. In December 1856 the collector and assistant clerk absconded, having embezzled 22,4071. and 3,000l. respectively, at which time the embezzlements were first discovered. A call or order for contributions for the coming half

Q