The judgment of the Court (1) was now delivered by—

LORD CAMPBELL, C.J.-In this case it is conceded that the gross earnings of the canal in the respondent township, amounting, for the year to be considered, to 185l., shall be taken as the basis of the calculation of the sum on which the company is liable to be rated to the relief of the poor within the township. A claim to raise this sum is put forward by the respondents in respect of the benefit alleged to be derived by the canal in other parishes, through which it passes, from the two locks within the township; but this claim is to be made only in the event of the Court holding that the expense of maintaining those two locks, amounting to the sum of 1057., must be deducted from the 185l., the amount of the gross earnings. The real question which we have to decide is, whether this deduction is to be allowed.

We are of opinion that the expense of maintaining the two locks within the township does not come within the category of local expenses, and ought to be thrown upon the whole line of the canal. This must be considered as one of the points decided in The Queen v. the Great Western Railway Company (2). That was the case of rating a railway; and there the question arose, how the expenses of maintaining such works as a tunnel or an inclined plane should be dealt with. The Court said, "without these the traffic on either side could have no existence; it would be wrong to set these wholly and exclusively against the receipts on the same line." The locks on a canal are like inclined planes on a railway; to permit a transit where there is a change in the level of the country to be travelled over. In controverting this authority, reliance was placed, by the counsel for the appellants, upon what was said, by Bayley, J. and Littledale, J., in The King v. the Oxford Canal Company (3), as to the expense of repairing the banks of a canal being to be deducted as local. But these very learned Judges do

(1) Lord Campbell, C.J., Crompton, J. and Hill, J. (2) 15 Q.B. Rep. 379, 1085-see pp. 108990; s. c. 21 Law J. Rep. (N.s.) M.C. 84—see pp. 91-2.

(3) 10 B. & C. 176.

not then seem to have had in contemplation important special works constructed necessarily for the use of the whole canal. If there were an aqueduct erected to carry a canal across a valley, the annual expense of repairing it might very possibly be greater than the whole of the gross receipts from the traffic on the canal within the parish where the aqueduct stands. Shall it be said that the canal company is not liable to be rated to the relief of the poor within this parish? If not, then the ratepayers are damnified by the canal passing through the parish; for thereby the number of the poor to be relieved may be increased, and the property rateable would certainly be diminished, for the land occupied by the canal, which was before rated, I would cease to be rateable. But no injustice or inconvenience seems to follow from saying that such expenses are to be deducted from the gross profits of the whole line of the canal or of the railway.

An attempt was made to shew that the decision in The Queen v. the Great Western Railway Company is not applicable to the present case, because here the company are not carrriers. There certainly is considerable difficulty in applying the rule laid down in the Parochial Assessment Act to canals and railways passing through many parishes; and we had hoped that the legislature would have relieved us from the difficulty by laying down rules of rating, more applicable to a species of property rapidly increasing in amount, which does not seem to have been in contemplation when the Parochial Assessment Act passed. But the legislature declining to interpose, we have been driven to dispose of all these cases in the best manner we could; and we see no aggravated difficulty in applying to these the only rule given to us, whether the companies are carriers themselves, or receive their profits in the shape of tolls for using the means of conveyance which they furnish to the public, without furnishing the vehicles to convey or the moving power.

For these reasons, we think that upon the question now before us, we ought to give judgment for the respondents.

Judgment for the respondents.

1859.

Jan. 15. S

THE QUEEN

. THE INHABITANTS OF CUDHAM.

Order of Removal - Five Years' Residence-Widow removable-9 & 10 Vict. c. 66. s. 1; 11 & 12 Vict. c. 111. s. 1.

Under the 9 & 10 Vict. c. 66. s. 1, and the 11 & 12 Vict. c. 111. s. 1, a widow, whose husband was irremovable at the time of his death, does not continue irremovable if she has not herself resided the five years. A man, having resided more than five years in a parish, married a woman who had not before been resident in the parish; after the marriage they lived together in the same parish for about two years, when the husband died, and the widow and two children of the marriage resided a year longer in the parish, and on their becoming chargeable, an order was made for their removal to the man's place of settlement :-Held, that the order was right.

On appeal against an order for the removal of Naomi White, widow of William White, and her two children, from the parish of Bexley, in the county of Kent, to the parish of Cudham, in the same county, the Quarter Sessions confirmed the order, subject to a

CASE.

The respondents alleged and proved a valid settlement of William White at the time of his death, by hiring and service in the appellants' parish. Among others, the following were grounds of appeal :-First, that William White resided continuously in the respondent parish for five years up to the time of his death, and had become irremovable; and Naomi White, since her marriage with her late husband in the year 1854, resided with him up to the time of his death, and had continued to reside in the parish up to the time of the application for the warrant, and was also irremovable. Secondly, that at the time of the application for the order Naomi White had resided in the respondent parish for five years, and was irremovable.

The appellants proved that W. White had for twenty years before his death, which took place on the 26th of September 1856, resided exclusively in the respondent parish, and had been for more than five years previous to and up to his death NEW SERIES, XXVIII.-MAG. Cas.

irremovable there from by reason of such residence. He was married to the pauper Naomi on the 23rd of April 1854. She had not resided in the respondent parish before that time, but from the time of her marriage she resided with her husband in that parish up to his death, and continued to reside in the parish up to the time of the obtaining of the order of removal, on the 14th of November 1857. The two children were the issue of the marriage, and were both within the age of nurture, and resided with their mother, and were with their mother chargeable to and receiving relief from the respondent parish when the order was obtained.

The question for the opinion of the Court was, whether under the above circumstances Naomi White and her two children were at the time of the obtaining the order removable from the respondent parish.

If the Court should be of opinion that they were removable, the order was to be confirmed; if otherwise, the order was to be quashed.

G. Denman and Digby, in support of the order of Sessions.-The widow does not come within the first part of the 9 & 10 Vict. c. 66. s. 1, for she had not resided herself for five years in the respondent parish; and this distinguishes this case from The Queen v. Glossop (1), for in that case there had been an actual residence by the pauper as wife and widow. But then it is said she comes within the proviso of that section, or within the proviso as amended by the 11 & 12 Vict. c. 111. s. 1, but that merely makes a wife removable, whatever the circumstances of her own residence, where the husband is removable, and irremovable where he is irremovable; there is nothing in it to communicate to the widow after her husband's death a status of irremovability which he had acquired. The Queen v. St. Anne's, Blackfriars (2), decided that an unemancipated child having a father alive, could not acquire irremovability for herself, but must be irremovable or removable according as the father was irremovable or removable :

and, therefore, has no bearing on the pre

(1) 12 Q.B. Rep. 117; s. c. 17 Law J. Rep. (N.S.) M.C. 171.

(2) 2 E. & B. 440; s. c. 22 Law J. Rep. (N.S.) M.C. 137.

P

sent case: though it was contended before the Justices that it shewed that the status of irremovability was something that passed from the father to the child; but that can only be while the father or husband is alive, as the proviso is merely to prevent families being separated.

Deedes and F. Russell, contrà.-The Queen v. East Stonehouse (3) shews, that although a wife had resided ten years in a parish she was removable if her husband had not resided five years: and the converse must hold good, and the husband's status of irremovability must be communicated to the wife. The Queen v. Pott Shrigley (4) has the same bearing. The Queen v. Glossop shews that the death of the husband is no break of residence if the wife continue to reside.

LORD CAMPBELL, C.J.-The question is, whether the widow had acquired a status of irremovability. It is quite clear that she had not acquired this status under the first part of the section (9 & 10 Vict. c. 66. s. 1), for she had not resided five years in the respondent parish; and the only mode by which she could have acquired it is, that her deceased husband had resided for more than five years before his death, and having acquired this status had communicated it to her. While he lived she was irremovable, but it was only in respect of his being alive and irremovable that she was irremovable; and the proviso in the statutes was enacted for the purpose of preventing the separation of husband and wife. After his death the man can no longer be said to be in the condition of being irremovable, nor is he capable of having a wife, and the proviso has no longer any application; and all that has to be ascertained is, whether the person removed, not being married, has resided five years. The Queen v. Glossop is no authority in favour of the non-removability, because there the woman had resided herself as wife and widow five years, and had acquired in her own right the status of irremovability.

CROMPTON, J.-I am of the same opin-
The arguments depend very much

ion.

(3) 24 Law J. Rep. (N.s.) M.C. 121; s. c. 4 E. & B. 901.

(4) 12 Q.B. Rep. 143; s. c. 18 Law J. Rep. (N.s.) M.C. 33.

upon what is meant by a status of irremovability. Is that a permanent or merely a temporary status? Looking at the act, the case seems to me clear: the statute seems to contemplate, in the first instance, actual residence; in The Queen v. Glossop the Court merely looked at the actual residence of the person and how can that of another be taken into account? The proviso in the section, as it now stands, whatever may be the supposed object of the alteration, in effect merely enacts, that whilst the husband cannot be removed, neither shall the wife and children be removed, in order that families may not be separated; but this can have no operation when there is no husband to whom it can apply. But it was said that the status of irremovability was communicated, or, at all events, once acquired should always last that is not so, unless the wife herself has acquired it by actual residence as wife, or as wife and widow in succession.

HILL, J.-I also think that the pauper has not acquired any status of irremovability, because it was only through her husband that it could have been acquired; and looking at the statutes, it can only continue so long as she has a husband who has himself that status.

Order confirmed (5).

1859. THE QUEEN . THE INHABITANTS Jan. 22. S OF THURLSTONE.

Poor-Rate-Rateable Value-Occupation of Land without the Right to the Game.

A tenant occupied land under a parol demise to him from year to year, the right to the game and of entering for the purpose of taking and killing it being reserved to the landlord. The rateable value of the occupation of the land without the right was 11. 5s. 8d., and with the right, 26l. 19s. 8d. The Quarter Sessions having found

(5) The Queen v. Cudham. This was a case on appeal against an order of removal from Bexley to Cudham of two children, aged fourteen and eight, of the same Naomi White by a former husband, Benjamin Wickenden, his place of settlement at his death being Cudham. The grounds of removal and facts of the case were identical with the principal case, the children having always resided with their mother. No argument was offered, and the order was confirmed.

The land in question is part of several thousand acres of moor and uncultivated land, in the township of Thurlstone, inclosed and allotted under an Inclosure Act, 52 Geo. 3. c. 130, the present owner being Lord Scarborough.

For several years past the appellant has held and occupied the land as tenant to Lord Scarborough from year to year, under a parol agreement, by which the same is demised to him from year to year, at the yearly rent of 81. 8s., but the right to the game thereon and of entering thereon for the purpose of killing and taking the game thereon is reserved to Lord Scarborough, and the appellant is prohibited from under-letting, assigning or otherwise parting with the possession of the premises so demised without the previous consent of Lord Scarborough. Lord Scarborough has never derived any pecuniary profit or advantage from the game or from the right of killing the same upon the land, nor has he personally exercised, nor does he personally exercise, the right of killing or preserving the game, or of taking the same thereon, but he has given, without any pecuniary or other consideration whatsoever, permission in writing under his hand and seal, which has been duly registered with the clerk of the peace for the West Riding of the county of York, to John Spencer Stanhope, Esq., to enter upon the said land and to preserve, kill and take the game upon the same, and the said J. S. Stanhope has been and

still is in the habit by himself and others of preserving, killing, and taking the game thereon.

Until about two years ago, the land was assessed to the poor-rate at 127. 6s. 2 d. gross, and 11. 5s. 8d. rateable value, which rateable value was and is the fair and just rateable value of the land to a yearly tenant, occupied as it was and is by the appellant as pasture land, all right to the game, and to the killing or taking thereof, being expressly withheld from him. The overseers of the respondent township, considering that the land ought to be rated at the amount of its annual value to a yearly tenant occupying the soil and enjoying not only all that the appellant now has, but also the right of killing and taking the game on the land, caused a revaluation to be made, and the beneficial occupation of the land, as then held by the appellant, was accordingly valued at the increased value of 261. 19s. 8d. as the rateable value.

The Quarter Sessions found that a tenant from year to year might be obtained, who would, notwithstanding the expense necessary to be incurred in preserving the game, give a rent of 1s. per acre for the exercise of the right of killing and taking the game on the said lands; and that if such person also occupied the land, the whole rent paid by him would amount to 291. 5s. 2d., the said rent being calculated at 12l. 6s. 2d. for the occupation of the land for pasture, and 167. 19s. for the exercise of the right of killing and taking the

game, and the rateable value would then be 261. 19s. 8d. They also found that 11. 5s. 8d. is the fair and proper rateable value of the same land, if the appellant is to be assessed in respect of the value of the same as pasture land only, without the right to the game and the killing and taking of the game.

The question for the opinion of the Court was, whether the appellant was only liable to be rated in respect of what he at present beneficially occupies, and of what he had the right to possess and enjoy, or at the increased value which would arise from what would be given by a tenant who also had the right of killing and taking the game on the same lands. If the Court should be of opinion that the appellant was liable to be rated in respect of the value of his occupation, increased as aforesaid, then the rate to stand as originally laid, with costs, to the respondents. If the Court should be of opinion that the appellant was liable only for his occupation of the soil as pasture land under his demise of the land, then the rate to remain amended as above, with costs to the appellant.

Pickering and Wortley, in support of the order of Sessions.-The question is, what was the beneficial occupation in respect of which the appellant was rateable? Before the statute 1 & 2 Will. 4. c. 32, such a clause in a deed reserving the right of shooting would operate as a re-grant by the tenant, if he executed the deed, and not as a reservation by the landlord-Wickham v. Hawker (1), but the statute makes it operative as a reservation; and the right, therefore, never was in the occupier. The King v. Bradford (2), Allison v. Monkwearmouth (3) and The Queen v. Williams (4) shew that any advantage giving an additional value to the occupation of the land might be taken into consideration in estimating the rateable value of the occupation; but this advantage must be enjoyed by the occupier himself, and not by some

(1) 7 Mee. & W. 63; s. c. 10 Law J. Rep. (N.s.) Exch. 153.

(2) 4 M. & S. 317.

(3) 4 E. & B. 13; s. c. 23 Law J. Rep. (N.s.) M.C. 177.

(4) 23 Law Times, 76.

one else. In the last case, the Court held that the overseers were right in taking into consideration the enhanced price which the tenant paid for his land in respect of the right of shooting; but that case is no authority for saying that the tenant must be rated as if he had the privilege, whether he has it or not. It may be a question whether the landlord is rateable in respect of this privilege; possibly he may.

[CROMPTON, J.-If he is not, by letting a large tract of moor for 10l. and reserving to himself the shooting, he may get rid of a liability to rating for several hundreds, which he would pay if he retained the land in his own hands.]

There is no case in which it has been held that an owner is rateable in respect of the shooting over his own land, though possibly he may be rateable. In the judgment of the Court in Graham v. Ewart (5) it is said, "It is competent for a man to grant to another and his heirs, with his servants, or otherwise, the right to come upon his land and there exclusively hunt, fish and fowl, and such a grant is a licence of a profit à prendre; and if a man convey away his land reserving such a right, it is not a reservation or exception properly so called; but if the grantee execute the deed containing such a clause, it operates as a grant-Wickham v. Hawker. In the argument and judgment in that case all the authorities will be found, and the result is, that such a grant creates an interest, which is in law denominated a tenement, within the definition of that word in Co. Lit. 20, a, being an inheritance issuing out of the land and exercisable within it." In the present case, therefore, the land and shooting, by the agreement and statute taken together, have been separated and made two tenements, of one only of which -the land—is the appellant the occupier, and in respect of this the Sessions have found that he would be properly rateable at the lower sum. The argument from the hardship to the parish because, if the occupier of the land is not rateable for the shooting, no one can be, can have no weight: there are many things which are not rateable per se, though connected even with land, but which become rateable if connected with the (5) 11 Exch. Rep. 326; s. c. 25 Law J. Rep. (N.S.) Exch. 42.