fore the defendant in this case is rateable in the larger sum, as for the value of this canteen, with the privilege annexed to it, of which he is the beneficial occupier; in like manner as the lessee of an ancient mill, at which all the inhabitants, &c. ought to grind, would be rateable for the value of the mill with the suit annexed. Bolland and Boteler, contrà, principally relied on the distinction between things real, which are fixed, and cannot be moved from their place, and things personal, which are moveable, and attend the person wherever he goes. And they said that the privilege granted to the defendant by this indenture was of the latter sort; and so this case differs from the cases of the carding and weighing machines, which were each of them more or less considered as affixed to, and constituting a part of the freehold. Lord ELLENBOROUGH C. J. I cannot look at the reservation in this indenture in any other point of view than as a mode which the parties have chosen of dividing the rent. For it is in substance but one entire rent payable for the occupation of a real tenement, and for the enjoyment of the advantages belonging to it. From its vicinity to the barracks, it of course would attract to it almost all the custom of that neighbourhood, and this is the incident to the property which renders it valuable. If this could be separated from the value of the tenement, and the rent distributed accordingly, we should henceforth never see a demise of any public house in which this form of distribution would not be observed; the lessor would let the tenement at the bare rent which it was worth, and the privilege Y 3 1815. The KING against BRADFORD. 1815. The KING against BRADFORD. privilege of carrying on the trade at a separate and independent rent. And this would be a receipt for reducing the annual value of the tenement to a mere shadow. But we must judge of things as they really are, and not as they may appear to be; and therefore we are to consider here whether this be not substantially one entire rent in respect of one entire subject, though artificially divided into several payments. Now it does appear to me that this is as much a profit appurtenant to the tenement arising from its local situation, as was the profit of the weighing or carding machine, to the tenements there rated. And it has not been improperly likened to the case of a soke mill, which is let at a higher rent, because it has a right to the sole multure of all the corn and grain in the neighbourhood. Can it be doubted that this would form a part of the rateable value of the mill itself? Therefore I cannot consider this reservation distributive, where it is in truth in respect of one entire taking of an entire thing with the benefits incident to it. It seems to me that this defendant is rateable, not only in respect of the 157. reserved nominally as the rent, but also in respect of the farther sum of 510l. LE BLANC J. As I understand it, the rate is inposed upon the defendant as occupier of this canteen, for which he is rated as upon an estimate that its annual value amounts to 3931. 155. The case states that the commissioners of the barrack board demised to him this canteen, at a rent of 157. for the canteen, and also the farther sum of 510l. for the privilege of using it as a canteen, and selling in it provisions and liquors and other articles usually sold by sutlers. And the question for our opinion is whether he ought to be rated in respect of 11. 5s. the reduced proportion of the sum of 15l. or in respect of 393l. 15s. the same reduced proportion of the aggregate sum of 5257. which is compounded of the two sums of 157, and 510l. reserved by the lease. Now in this case I cannot but consider, notwithstanding the division of the rent into two parcels, that this canteen stands precisely on the same footing as a public house; that is, it acquires a value from its situation and from its being fitted up in a manner calculated to answer the purpose of a public house. It is quite immaterial whether the rent which is paid for it is divided into separate parts, so much for the house, and so much for the privilege that it enjoys, if it be a rent for one entire canteen. And the party is not rated in respect of the profits of his trade but only of the rent which he pays; and this, at the reduced ratio according to which the other property in the parish is rated. DAMPIER J. Although the rent is divided in one part of the lease, I find in another part that the whole is carefully included under the power of distress. Per Curiam, Rate confirmed, 1815. The KING against BRADFORD. 1815. Saturday, June 10th. Mandamus does not lie to restore the clerk and treasurer of the guardians of the poor of St. Nicholas, Rochester. The KING against The Guardians of the Poor of ST. NICHOLAS, ROCHESTER. UPON a rule nisi obtained in the last term to restore one Pratt to the office of clerk and treasurer of the guardians of the poor of Saint Nicholas, the case, as stated on the affidavit of Pratt, was this: By stat. 49 G. 3. c. 40. (local and personal) for the better assessing and collecting the poor and other rates in the parish of Saint Nicholas, Rochester, the churchwardens and overseers of the parish with thirteen persons are appointed guardians, out of which six are to go out of office every Easter, and others are to be chosen in their place, and in the place of such as should die or remove out of the parish. In this body are vested the rights and powers of churchwardens and overseers with power to seven of them or more to nominate a treasurer and clerk to the said guardians, such treasurer and clerk to be resident in and rated to the poor of the parish. And the guardians are to take security for the faithful performance of his office, and to allow him such salary as the seven or more should think fit. The guardians are to make rates, to be received by the collector, and paid over to the treasurer or such person as they should appoint, and the treasurer is to pay such sums as he shall receive to such persons and in such manner as the guardians shall direct. And the guardians are to be sued in the name of their treasurer. Immediately after the passing of this act in 1809, Pratt was appointed clerk, and, in 1810, treasurer, without 12 without limitation as to the duration of either office, and he continued to act as such until March 1815, when, in consequence of some disagreement between him and the guardians, it was resolved by the guardians that the offices of treasurer and clerk were incompatible in the same person, and another person was appointed treasurer, and it was also resolved that it was proper to desist for the present from the appointment of any farther officers, and notice was given to Pratt, signed by eight guardians, to render his account, and pay over the balance to the new treasurer, and deliver up all his books, &c. to the guardians. And now the question was, if this were an office for which a mandamus lies. Marryat and Holroyd, who shewed cause, contended that it was not; for the body which nominates to it is not a corporate body, but is merely added to, and is as fluctuating as the parish officers themselves. And what more is their clerk than a vestry clerk, for whom a mandamus lies not (a); or their treasurer than a common banker, out of whose hands the funds may be withdrawn ad libitum? He has no freehold, neither is entitled to any fees, but only to an allowance at the option of the guardians, which may be either a penny or a pound. And if a mandamus lies for this office, by the same rule it would lie for the toll-keeper of every turnpike gate appointed by the trustees. Moore contrà, argued that a mandamus lies in this case; for the statute denominates this person an officer, (a) Rex v. Churchwardens of Croyden, 5 T. R. 713. and 1815. The KING against The Guardians of ST. NICHOLAS, |