arbitrator has done here: he deducts the value of that portion of the works which is not immediately productive in the parish where it is situated, and then distributes the value of the residue among the different parishes.]

The analogy between railways and waterpipes is not perfect. In the former case, the legislature has created a criterion for calculating the rate in different parishes, by enacting that the payments made to the railway company shall be proportional to the number of miles travelled over; whereas, in a water company there is no such proportion. In The King v. the New River Company (2), it was argued that in rating a water company for their spring, the profits earned several miles off and in a different parish could not be taken into account; but the Court said, that as they assisted to enhance the value of the spring they must be included in the rateable value.

[WIGHTMAN, J.-You contend, then, that all the permanent works, buildings, &c., contribute to the general fund received, and that all ought to be thrown together, and the proportion of each parish then calculated?]

Yes; it is submitted that the mileage principle is only applicable in its strict sense to railways and canals.

[ERLE, J.-Suppose capital embarked in an engine to raise water in parish A. to the extent of 100,000l., and a pipe to convey the water in parish B, value 20., is the proportion of rate in B to that in A to be 20 to 100,000?]

That would be so if there were no distribution of water in parish B, through which the pipe merely passed; and there would be no injustice in so assessing it. The arbitrator does not say on what principle he arrives at the sum of 6,500l. for the buildings, &c., which he has deducted: it is a mere arbitrary assessment.

Sir F. Kelly, Bodkin and Hodges, contrà. -The true principle of rating the company is, to distribute the whole rateable value among the different parishes in the proportion in which the part of the works situate in each parish conduces to the whole earnings; and if all parts of the works equally conduce to the entire earnings, a mileage proportion is the fair one. According to The Queen v. the

(2) 1 Mau. & Selw. 503.

Cambridge Gas Light Company (3), the apportionment should be made according to the amount of land occupied in each parish.

[ERLE, J.-In that case, I think the result of the spatial principle and that of earnings was the same.]

In some parishes where there was a greater length of pipe the earnings were less.

[PATTESON, J.-You say the arbitrator rightly deducted the buildings, &c. I cannot understand how it is so, for these buildings are just as essential as the pipes to earning the profits: it is not like a warehouse on a canal, or a station on a railway.]

The warehouse and station are essential to the use of the railway, though it is impossible to say in what exact proportion. The buildings, &c., not directly productive of profit, are assessed by the arbitrator with reference only to the rateable value in the parish where they are situate. The prin

ciple contended for by the company, that the outlay in each parish is to be the criterion of rateable value there, is perfectly novel. Suppose the springs and machinery were rented by the company at 6,000l. a year, and their only outlay in the parish was the construction and laying down pipes if they were only rated in proportion to that outlay, it would be unjust to exclude from the computation their occupation as tenants at the rent of 6,000l. a year. It is the net annual value (however arising) in the particular parish which is the true basis. of the rate in that parish-The King v. Lower Mitton (4), The King v. Milton (5), The King v. the Corporation of Bath (6), The Queen v. the London and South-Western Railway Company (7).

M. D. Hill was allowed to reply.

Cur. adv. vult. The judgment of the Court (8) was (June 26) delivered by—

LORD DENMAN, C.J.-In this case the rateable subject, being the apparatus for supply of water situate in twenty-one parochial districts, and the rateable value (that

(3) 8 Ad. & El. 73; s. c. 7 Law J. Rep. (N.s.) C.M. 50.

(4) 9 B. & C. 810; s.c. 8 Law J. Rep. M.C. 57. (5) 3 B. & Ald. 112. (6) 14 East, 609.

(7) 1 Q.B. Rep. 558; s. c. 11 Law J. Rep. (N.s.) M.C. 93.

(8) Lord Denman, C.J., Patteson, J., Wightman, J. and Erle, J.

is, 30,8007.), being the residue of the gross receipts, after making all the deductions to which the company are entitled, have been correctly ascertained by the award. The principle for dividing that sum among those districts is the matter to be decided. The company contend, that the division should be according to the amount of fixed capital in each district. But the rule of law laid down by act of parliament for ascertaining the rateable value of any subject refers to an estimate of the rent it should yield. The outlay of capital might furnish no such criterion, since it may have been injudiciously expended, and what was costly may have become worthless by subsequent changes. As our opinion is against the company upon the objection relied on in argument on their behalf, it follows that the rate should be affirmed. But as the award suggests different methods of apportioning the rateable value, and so arriving at the same rate, it would be convenient, if we also stated our view of those methods for applying the above rule of law to such rateable subjects as the present. The first step in apportioning has been in effect to divide the whole apparatus, constituting the rateable subject, into two portions, of which one is directly productive of rateable value, being the service-pipes which deliver the water to the consumer; the other indirectly conduces to such production, being the rest of the works, bringing the water to the service-pipes. The second portion has been first rated in the ordinary way by valuing the land with the buildings and fixtures thereon, and the amount of rate so ascertained has been deducted from the sum of rateable value, and distributed to the districts in which the parts of this portion are situate. An analogous course appears to have been adopted for railways in The Queen v. the London and South-Western Railway Company, The Queen v. the Grand Junction Railway Company (9), and for gas companies, in The Queen v. the Cambridge Gas Company. Also, the spring, which indirectly conduced to the ultimate profit by waterrate, was held rateable in the parish where it was situate, in The King v. the New River Company, the quantum of such rate being left for the Sessions. As this course was acquiesced in by both parties in the three

(9) 4 Q.B. Rep. 9; s. c. 13 Law J. Rep. (N.s.) M.C. 94.

latest cases, we may presume that it can be applied without practical difficulty, and we see no objection to it.

The remaining step has been to apportion the residue of the rateable value among the districts in which the direct productive portion of the works is situate, in the ratio either of the net profits or of the gross receipts, or of the quantity of mains and pipes, and of the land occupied by them in each district. Each ratio in the present case gives the same result. If they differed, it would be necessary to select between them, and that ratio should be preferred which would best shew the rent to be expected, if the part of the works situate in the district was let separate. It is clear that the net profits in each parish would be the best criterion of such rent, and they would therefore give the proper ratio. It is also clear, that the ratio of the gross receipts or earnings in the several districts to each other will be the same as the ratio of the net profits in those districts to each other, in all cases where the total of expense is taken to be common to the whole apparatus, and is deducted from the total of receipts in the progress of ascertaining a rateable value. For in such case, the net profits in each district would be ascertained by distributing the expense among the several districts, and it would be distributed in the ratio of the gross receipts in each; and if a proportional deduction should be made from the gross receipts in each, the ratios of the remainders to each would be the same as the ratio of the gross receipts. As any attempt to ascertain the net profits in each district in any other way would lead to minute and inconvenient inquiries in practice, the ratio of the gross receipts should be adopted, as being an index of the net profits, when the rateable value is ascertained in the way stated in the case. We think that an apportionment in this sense, according to the gross receipts, is in accordance with the decisions which have apportioned the sum of rateable value from a railway or canal according to the length of line in each parish-The King v. Kingswinford (10), The King v. Woking (11). Where the profit arises from transit, the line of the

(10) 7 B. & C. 236; s.c. (as The King v. Dudley Canal Company) 6 Law J. Rep. M.C. 3. (11) 4 Ad. & El. 40; s.c. 5 Law J. Rep. (N.S.) M.C. 17.

canal or railway is directly productive of the profit, and the reservoirs, warehouses, stations, &c., indirectly conduce to such production. Each portion of the line earns an aliquot portion of the profit, and if equal portions of one line carrying at one rate could be conceived to be let separately, no one portion would be let at a higher rate than the other, and an apportionment of a sum of rateable value according to the length of line in each parish is according to the rent to be expected for that part of the line. In the case of water companies, where the profit arises from the delivery of the water at a given place, the previous transit being immaterial to the consumer, the service-pipes immediately produce the profit, and the agency by which the water reaches those pipes indirectly conduces to such production. If the service-pipes in each parish could be let separately, the water being assumed to be sold at the same price throughout, the criterion of the rent would be found in the gross receipts, which would depend on the number and diameter and level of the service-pipes in each parish, and an apportionment according to the gross receipts in each district would be according to the rent to be expected from the part of the rateable subject situate in such district.

This apportionment is not at variance with the grounds of the judgment in The Queen v. the Cambridge Gas Company. There the Court decided, that the parishes in which the profits are received are not entitled to all the amount produced by the rate, but that the parishes in which parts of the apparatus indirectly conducing to produce profit are situate are entitled to a proportion. The Court also declared, that the principle upon which the sum of rateable value from the rates of all the parishes should be apportioned, is the same as that which had been applied to canals. By the method adopted in this case, the rateability of the portion of the apparatus indirectly conducing to produce profit is provided for, and the residue of the sum of rateable value is apportioned to those parts of the apparatus directly producing profit in analogy to the mileage proportion for canals and railways. We have thus endeavoured to shew that the rule for ascertaining the value for separate rating ought to be applied, as far as practicable, to apportioning among separate districts a sum of rateable value arising partly in each.

Order of Quarter Sessions quashed, and original rate confirmed.

Acknowledgment-Effect of relief given by relieving officer of union, 70, 175

See Relief.

Affiliation, Order of. See Bastardy. Appeal-Under ground stating that examinations were defective, for not shewing by sufficient statement of facts that pauper at the time order of removal was made was chargeable to respondent parish, appellants not entitled to object that examinations did not shew residence of pauper in respondent parish, 1

Sufficiency of, as to stating settlement by serving an office, 25

Under ground of, stating that notice of chargeability, accompanied by copy of order and examinations, had not been sent to appellant parish, in conformity with statute, objection that notice of chargeability sent was accompanied by imperfect copy of order, cannot be raised, 33

Where sessions held on fixed days at different places for different divisions of county, and practice of Sessions to try all matters arising in each division, at sessions held for that division, notice and statement of grounds of appeal, under 4 & 5 Will. 4. c. 76. s. 81, must be given at least fourteen days before first day of holding sessions at first place, and not in time if given only fourteen days before adjourned sessions at which appeal is to be tried, 36

Effect of former order quashed, "not on the merits," 41

Evidence by appellants to shew that pauper was not born in the parish, not admissible under grounds of appeal, where examination set up two grounds of settlement in the appellant parishfirst, birth; second, hiring and service; and grounds of appeal set up former order of removal between same parishes quashed by Sessions, and a settlement by parentage, and also traversed the hiring and service, and further alleged that paupers were not settled in appellant parish "in any manner whatever," 44

In examinations for order of removal from township of L. to parish of C, M. S. stated that she was the widow of A. S, who was born at C, of parents settled there, as she believed; and J. S. stated that he was an elder brother of A. S, who was born in C. Grounds of appeal that order, notice of chargeability, and examinations were bad on the faces thereof, and that examinations contained no legal evidence of pauper's settlement in C, or of their having come to settle in or being

chargeable to L. At trial, appellants contend, that examinations do not shew that A. S. mentioned by the widow was the same A. S. mentioned by J. S; and Sessions thereupon quash the order. Objection sufficiently raised by grounds of appeal, and decision of Justices final, 53

Appeal Order of removal directed to a parish which contained several townships, one of which bore the same name as the parish. Officers of township appeal against order. Respondents take preliminary objection that churchwardens of parish should have joined in appeal. Witness states that township maintains its own poor, but Sessions, not believing that statement, hold objection good, and dismiss appeal. Decision of Sessions upon a question of fact, and final, 55

Where former order quashed not conclusive, 81

An appeal against an order of removal was entered at the Midsummer Sessions. The attorney for the appellants served a notice on the respondents, in due time, "to enter" and try at the Michaelmas Sessions; but fearing that the insertion of the words " to enter" might invalidate the notice, he took it back and erased those words, and at the same time inserted a sentence withdrawing the former notice, and then caused the notice, so altered, to be served on the respondents, without having it signed afresh by the parish officers of the appellant parish. At the trial these facts appeared, but the person who served the second notice not being present to prove that it was served in time, the Sessions dismissed the appeal, on the ground that "the notice was not sufficiently proved":-Held, that the insertion of the words "to enter" did not vitiate the first notice; that the alterations made by the attorney after the notice was signed were such as he was justified in making; that the second notice was a sufficient abandonment of the first, but that as the time of service was not proved, the Sessions decided rightly on a preliminary question of fact, with which this Court could not interfere, 86

22nd of April G. G. was removed alone from M. to D, on order for removal of himself and family. No appeal entered against order of removal. G. G. returned to M, and on 23rd of December, being again chargeable, was removed with his family to D, under same order. Overseers of D, entering appeal against removal, at next January Sessions, too late, as they should have appealed to first sessions after order, or after first removal of G. G, 112

Appeal-Right of parish to treat removal as grievance and to appeal to Sessions next after removal, instead of after order and notice thereof, 153

Time for appealing against order adjudging settlement of lunatic, 171

See Conviction. Lunatic. Apprenticeship Examinations, stating that pauper was, with his own consent (his parents being dead), bound apprentice by indenture, dated, &c., which was duly stamped and executed by the parties thereto, and indenture shewn to be lost; it sufficiently appears that binding was not a parish binding, 33

Examinations set up a settlement by, and indenture being lost, secondary evidence given by production of register of parish apprentices, regularly kept under 42 Geo. 3. c. 46, and containing the entry of assent of two Justices to the binding. Sessions right in finding that it appeared from examinations that two Justices had allowed, by signing and sealing, an indenture, which recited an order under 56 Geo. 3. c. 139, for binding the apprentice; but also in deciding that examinations did not disclose sufficient legal evidence that such an order had been made, 49 Bail. See Prisoner.

Bastard Order of maintenance made 9th of April, and on 13th appellant entered into recognizances, pursuant to 8 & 9 Vict. c. 10. s. 3; but notice not served on respondent till 22nd of June. On 29th respondent's attorney undertook to admit due service of notices. At trial objected that notice of recognizances was not served "forthwith," pursuant to statute; but Quarter Sessions overruled objection, and quashed order. tiorari to bring up order of Quarter Sessions to be quashed refused, admission being evidence that notice had been served in time, 57

Cer

Application on summons for order of filiation heard before H. and B, two Justices, on the 14th of April. At adjournment to 17th, when Justices forming court were H. and C, order made, and appealed against, on ground that mother had not been re-sworn on second occasion. Afterwards, on 2nd of May, attorney for mother gave notice of abandonment of order, and tendered 17. 10s. for costs, which were accepted as costs of the adjournment only. On subsequent application to two Justices for order in the same matter, they are not bound to entertain application, full costs of former order not having been paid. Quare-Whether, if such full costs had been paid or tendered, they could be compelled to entertain such application, first order not having been quashed or vacated, 78

An order of affiliation is sufficient which states "that S. (the putative father) having been served with a summons, and now appearing in pursuance thereof, and it being now proved to us (the Justices) in the presence and hearing of the attorney attending on behalf of the said S, that the child was born a bastard, &c., and we having, in the presence and hearing of the said attorney attending on behalf of the said S, heard the evidence of such woman, &c., do adjudge," &c. The form of order in the schedule to 8 Vict. c. 10. does not require a statement that the evidence given was on oath. The Queen v. the Justices of Buckinghamshire overruled, 113

Birth Settlement-does not require a residence of
forty days to complete it, 1
Borough Gaol. See Gaol.
Brick-Field-How to be rated, 87

Case-Where granted by Sessions, party taking it must rely on objections there stated, or may abandon case and rely on such other objections as may be raised on a certiorari; but he cannot do both, 33

Where case sent from Sessions, Court will not, upon certiorari, go into any objections arising on face of the order itself, not raised by the case, 105

Court will only entertain cases from Sessions which raise a question, the decision of which will decide the appeal, and will not act on direction by Sessions, that in a particular event case is to be sent back to them to be re-heard, 159 Certiorari What objections may be taken when case is removed by, 33

not granted to bring up order in bastardy to be quashed by reason of notice not being served "forthwith," where Quarter Sessions have decided that admission by respondent is evidence thereof, 57

See Conviction. Church Rate. See Rate.

Upon

Churchwarden-In parish of S, in London, there was a select vestry, consisting of the parson and those persons who had served the office of churchwarden, or paid a fine for not doing so ; and by this body churchwardens were elected. From the earliest records of the parish, commencing in 1648, it appeared that a fresh churchwarden was annually elected to serve the office of junior churchwarden, and the junior churchwarden for the preceding year became the senior churchwarden for that year. This custom had been acted upon from the year 1648 up to the great fire of London, when two persons acted as junior and senior churchwardens during five years; the custom was then renewed and acted upon up to the year 1734, and during the interval from that year up to 1775 there were no records; from the latter year to 1824 the same course was pursued, with four exceptions. a case, on which it was agreed that the Court should have the power of drawing inferences in the same manner as a jury, -Held, that there was a custom that a parishioner, not a member of the select vestry, should be elected every year to serve the office of junior churchwarden, who in the next ensuing year should succeed to the office of senior churchwarden, and at the expiration of that year should become a member of the select vestry, by which means its members would be supplied; and that the election of G, a member of the select vestry, who had served previously the offices of junior and senior churchwarden, to serve the office of junior churchwarden in 1844 was void, 73 Conviction-Sufficiency of commitment under 8 & 9 Vict. c. 87. s. 50, describing the offence in words of 2nd section, without negativing exception in the 4th section. Conviction in other respects sufficient not vitiated by detainer of defendant for an unreasonable time before hearing of information against him, 4