So it is assumed by Lord Tenterden, C. J. in Rex v. Attwood (6 B. & C. 282). Then as to the scale of rating, the main question is, whether the parish is entitled to rate the lessees of these brick-fields upon the whole amount of royalty paid by them; and the case of Rex v. Attwood (6 B. & C. 277) is conclusive. There the question was as to the rateability of coal-mines; and there were five appellants, whose cases are stated separately; but the case of Wightwick (p. 278) is precisely in point, and the rate upon him was confirmed. Wightwick had been for five months lessee of the coal-mine upon which the rate was made, and during that time had paid 7857. 14s. in royalties for coals raised; he had also expended in the purchase of the lease, and setting the mines to work, 5,0201. During the five months, he had raised coals to the amount of 3,8251. 2s. 8d.; and he was rated upon the sum of 7857. 14s. Two objections were made to the rate in that case: first, that the rate should have been, not upon the annual value of the produce, but upon the interest of that value; secondly, that in making the rate, allowance should have been made for the expense of planting the coal-mines; and it was argued, that "the words of the statute 43 Eliz. c. 2, were decisive of the first point: the occupiers of coalmines are thereby made rateable in respect of the mine-that is, the capital, when occupied by the owner; the coal raised is the annual value, and for that the occupier is rateable, whether the adventure be profitable or not. And when the mine is in the hands of a lessee, he is liable to be rated upon the full amount of the royalty or rent which he pays, so long as he continues to work the mine. (Rex v. Parrot, 5 T. R. 593; Rex v. Bedworth, 8 East, 387.)" To that argument the Court acceded in confirming the rate. In Rex v. Parrot the question was whether the lessee of rateable property was exempt from rateability on the ground that the property yielded to him no profit; and the Court held that he was not, and that they could not inquire whether or not the tenant had made an unprofitable bargain; but in Rex v. Bedworth, it being found that the coals were totally exhausted, and the mines had ceased to be worked, Lord Ellenborough, J., referring to Rex v. Parrot, said, "In that case the subject-matter itself was profitable, and produced value to the owner, though the immediate occupiers derived no profit from it. But here the mine itself is exhausted, the subject-matter of profit is gone, although the rent, which was no doubt calculated upon the probable average produce of the whole term, be still payable. But with respect to the parish, he is only rateable for the concurrent annual value during the period for which the rate is made; and when the thing which he occupies no longer affords any such concurrent value, the subject-matter of the rating is gone." The present rate is made upon the principle deducible from these cases; it is made upon the improved value given to the land by the particular mode of occupation during the period for which it is made; as in Rex v. The Hull Dock Company (3 B. & C. 516), the company were held to be rateable upon the full amount of their profits, making a deduction for the sum which they were liable to pay for poor-rate; and in Rex v. Lord Granville (9 B. & C. 188), a lessee of a coal-mine being the occupier, and having erected a steamengine for working the mine, and thereby improved its annual value, was held liable to be rated for such improved annual value. The same principle governed the decision in Rex v. Mirfield (10 East, 219), where, with regard to saleable underwoods, which were usually cut down once in twenty-one years, and then, and not before, were profitable to the appellant, the question was, whether they were liable to be rated every year according to the annual average, or only when cut down and sold; and Lord Ellenborough, C. J. said: "The objection is, that the property ought not to be rated until the produce of it

has been secured from the land, and until it has supplied the occupier with the means of paying. But it is not necessary that any of the profits should have been actually reaped or taken from the property during the period for which the rate is made; but the property is at all times rateable according to the improvement in its value, or in the rent which might fairly be expected from it." [COLERIDGE, J.-There the subject-matter of the rate was renewable, and it is therefore hardly applicable to the present case, because Rex v. Bedworth shews that if all the clay were exhausted in one year, no rate would be payable during the subsequent years of the term.] If the clay is exhausted, and the land is of no value, then certainly there can be no rate; but so long as the land is productive, it is to be rated upon its average annual value. After the imposition of a rate, the occupier might unquestionably exhaust the clay within the year of rating; such contingencies cannot be completely provided for; but it is obvious that as the rate is to be made prospectively, only the ordinary average amount can be taken; as, in the case of a farm, the rate is upon the ordinary produce, and if the farmer does not crop his land, he must still pay his rate. Then, has the statute 6 & 7 Wm. 4, c. 96, s. 1, made any difference? That section enacts that "no rate for the relief of the poor in England and Wales shall be allowed by any justices, or be of any force, which shall not be made upon an estimate of the net annual value of the several hereditaments rated thereunto; that is to say, of the rent at which the same might reasonably be expected to let from year to year, free of all the usual tenants' rates and taxes and tithe-commutation rent-charge, if any, and deducting therefrom the probable average annual costs of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent." Now, this part of the clause clearly refers to houses and land, the ordinary subject-matters of a rate, for the deductions mentioned are applicable only to property of that description. No "costs of repairs or insurance" could be incurred with regard to a subject-matter like clay, annually destroyed by being used; and the "other expenses " must mean expenses ejusdem generis. Further, the words " necessary to maintain them in a state to command such rent" could only relate to a subject-matter capable of being maintained by repairs. Then the following proviso follows: "Provided always, that nothing herein contained shall be construed to alter or affect the principles or different relative liabilities, if any, according to which different kinds of hereditaments are now by law rateable; and that proviso is applicable to other species of property, rateable upon a different principle, such as mines and quarries, or clay, which, being annually destroyed, must be rated differently from property annually renewable. [COLERIDGE, J. -In Reg. v. Capel (12 Ad. & Ell. 408) it was mentioned in argument as well known, that "the proviso was introduced while the bill was passing through Parliament, to prevent the inequality which would have resulted from assessing tithes at their full annual value, while other real property was assessed only at rack rent."] The Court can take no notice of any fact of that sort. (a) [COLERIDGE, J.-In Reg. v. Capel, this proviso was very much considered, and the Court held that there was no difference in the legal liabilities of the tithe-owner and the occupier of land, so as to bring the rating of tithes within the terms of that proviso, "different relative liabilities."] No case like the present was suggested upon that occasion, where the rent is paid for a subjectmatter annually consumed. [COLERIDGE, J.-Is it more than a question of degree? In ascertaining the rate, you must take into consideration, not only the clay dug out, but the land from which it is dug; and then are not the expenses of getting the clay "expenses necessary to maintain the land in a state to command such rent ?"] They are included in the actual rent paid, (a) See the judgment of the Court in Reg. v. Capel, p. 411.

The

beyond which the tenant can afford to pay the owner of the soil so much per ton of clay taken. There is no difference in this respect between the brick-earth and coals. (Rex v. Attwood.) [COLERIDGE, J.-Your argument is, that a property which is annually consumed is subject to a "different relative liability" from property annually renewable, and that therefore this case comes within the proviso to the 1st section of statute 6 & 7 W. 4, c. 96; but you fail to carry out your own principle, because you rate upon an average.] That arises from the necessity of making the rate prospectively, but does not affect the applicability of the proviso to a case like the present, with regard to which it has a clear definite meaning. [COLERIDGE, J.-Did the Court, in Rex v. Attwood, or has it in any other similar case, ever treated the rateability as resting on any different principle from other cases of rating?] Not expressly. [COLERIDGE, J.-But the proviso seems to apply to cases where a different principle of rating exists.] The principle of rating houses and land, as such, is in effect different from that upon which property of this description is rated. Then is the mode of rating for which the appellants contend correct? first point which they make is that the rate ought not to be imposed upon any higher amount than the rent of 10l. per acre, which the case finds a tenant would be willing to pay upon a lease, with liberty to consume the brick-earth, but without liability to pay any royalty, according to the number of bricks made; but that rent is certainly not the criterion. That is the rent which a person entering upon a tenancy, and ignorant of what the land might produce, would, upon a speculation, be willing to give; but the case puts it beyond doubt that in fact more is paid in each of the nine cases stated. The real rent is the proper criterion, and that includes the amount of royalties, as well as the fixed sum paid by the lessee. (Daniel v. Gracie, 6 Q. B. 145.) And that is the answer to another objection made by the appellants, that the risk and expenses. incurred in making the bricks render the amount of royalty an improper measure of the amount of the rate. The same grounds of hardship were put forward in Rex v. Woodland, and answered. Thirdly, the appellants object to the additional charge of 46s. per acre, which is the amount at which other lands in the parish are rated; but the tenant pays a rent for the land in addition to the royalty, and the amount of the royalty is of course fixed accordingly. Fourthly, it is said that the deductions are insufficient, and further deductions are claimed for tenants' rates and taxes, and also for interest on the capital invested; but the answer is, that these outgoings are calculated in the amount of the rent before the contract is made, and therefore the rent agreed upon gives the rateable value, without those deductions. The respondents have deducted 33 per cent. for casualties and expenses; and no further claim can be sustained. In Rex v. Attwood various expenses were of course incurred in bringing the coal to market, but no allowance was made for them, because the expenses were incurred by the tenant for the purpose of manufacturing an article which, ultimately, after payment of them and of the landlord's rent, yielded a profit to the occupier. These deductions differ in principle from that allowed by the respondents for the foreign matters used in the manufacture of bricks. [COLERIDGE, J.-Like the use of expensive manure upon land, they diminish the profits.] No; they are expenses which the tenant voluntarily incurs for the purpose of increasing his profits, and he derives the benefit of the increased profits. [COLERIDGE, J.The fallacy is in supposing the use of the manure to be contemplated in the original agreement between the landlord and tenant.] No man would agree to give a certain rent without first calculating the expenses and the profits of the last tenant.

Hill and Pashley, contrà.-The rate, as made, is clearly bad. It is made

upon an assumption that the same number of bricks will be made in the year of rating as in the previous year, because there is the same capacity for making; and nothing can be more uncertain; for the construction of a viaduct in the neighbourhood, or some other temporary cause, may vastly increase the consumption of bricks in any given year. At all events, if the facts stated are sufficient to warrant a conclusion by the Sessions that the same number of bricks will be made, that should have been stated in the case; but on the contrary, the case expressly finds that 107. an acre is the rent which a tenant would give, paying no royalty. [WIGHTMAN, J.-Is not that inconsistent with other parts of the case?] There is no repugnancy in the two statements. The royalty is a mode of paying a certain sum for the brick-earth, as long as it lasts; but the 107. per acre is the rent which would be paid for a term, without any royalty. [COLERIDGE, J.-A smaller sum, therefore, in consideration of the risks.] Yes; the risk of there being no market, for example. It is admitted that this species of property is rateable, and that is all which the cases of Rea v. Brown, Rex v. Alberbury, and Rex v. Woodland decide. Rex v. Brettell (3 B. & Adol. 424) is to the same effect. But the question is as to the quantum of rate, and the deductions made by the parish officers are insufficient. They fail to ascertain the rateable value, which is less than the rent. The true principle of rating is to make the rate with reference to the permanent value of the property rated, so that it shall bear a proportion to it as nearly equal as possible in all cases. That is the rule of rating laid down by the stat. 6 & 7 Wm. 4, c. 96, s. 1, which points out the mode by which, in the ordinary cases of houses or grassland, the permanent value would be ascertained; and indeed that clause does not seem to contemplate the imposition of any rate upon property which might all be swept away at once, but only upon property in its nature renewable, and of permanent value. Bricks are not titheable, because they are not the annual increase, but of the substance of the earth (2 Inst. 651); and the statute speaks of a rent from year to year. Clearly, at all events, it shews that the rate is to be imposed upon property with reference to its permanent value. But it has been attempted to answer this argument by reference to the case of coal-mines. Now the statute of Eliz. does not provide at all for rating the net annual value; all rateable property stood on the same footing, and all persons, being occupiers of rateable property, of whatever sort, were to be rated equally; and under that system, for a considerable time, no practical inequality was created between the rates upon houses or land, and those upon coal-mines and quarries; because, formerly, coal-mines and quarries could only be wrought out in a great number of years; and if it took one hundred years to work out a coal-mine, the difference would hardly be appreciable. By the three per cent. tables (Inwood's Tables) it appears that the difference between the value of a lease for one hundred years, and the value of the fee, is only the difference between 314 and 33. Now, however, the case is widely different, and both the state of society and the statute law are so greatly changed, that the Court cannot be bound by the old authorities on this subject. But even under the old law it was soon found that to rate houses or coal-mines on the one hand, to the same amount as grass-land on the other, would be to make the rate very unequal, and the practice consequently arose of rating different descriptions of property at different proportions of the rent. In Rex v. Brograve (4 Burr. 2491) the occupiers of land in a parish were assessed at three-fourths of the yearly value of such land, and the occupiers of houses at half of their yearly value: but the Court said that there was no apparent inequality, and that it was right and proper that a difference should be made between land and houses. So in Rez v. Tomlinson (9 B. & C. 163), where a poor-rate was made upon two-thirds of

the net rent of lands, and half the net rent of collieries, it was held that this might be a fair and equal mode of rating, and as the rate did not manifestly appear to be unequal, the Court refused to quash it. In this way parishes avoided the inequality which would result from rating in the same proportion property which was permanent and property which was either not renewable at all, or only at very great expense: but now the power of thus equalizing the rates is taken away, for the rate must, by the statute of 6 & 7 Wm. 4, c. 96, be imposed upon the whole rent, subject to the proper deductions. The whole question, therefore, turns upon the sufficiency of the deductions made; and the effect of the argument on the other side is this,-that if the clay could be renewed, although it would clearly enhance the value of the property, it would diminish the rate; because in that case it is admitted that the expenses of renewal must be allowed in the rate. Then, secondly, what is the proper mode of rating these brick-fields? The idea of rating them merely as land used for agricultural purposes is abandoned. The rate should have been made upon the rent of 10., which the case finds that a tenant would give without payment of any royalty, making therefrom deductions in the nature of those which would be made if the clay could be reproduced. The land used as a brick-field is worth four years' purchase; but if the clay were renewable, it would, like arable land, be worth thirty years' purchase, and that, therefore, must be taken into account in estimating the quantum of the rate, unless it be true, as was argued with regard to the expense of manure, that that which would enhance the value of the land would also, on principle, diminish the rate. The appellants therefore contend that, in the same way as a depreciation fund is set aside for rebuilding a house when it shall be no longer habitable, and is allowed in the rate, so there ought to be, in a case like the present, a deduction for the purchase of a similar estate when the one rated has been worked out, so that one equal value at all times may be obtained. The extravagant conclusions to which any other mode of rating would lead are sufficiently apparent. Suppose that a viaduct was about to be built near a brick-field, a circumstance of that sort might reasonably lead to a contract to buy the land, and take away the earth bodily in a few weeks, for the purpose of making the bricks elsewhere; how, in such a case, is the annual value to be ascertained? What is the subjectmatter of the rate? [COLERIDGE, J.-In Rex v. The New River Company (1 M. & S. 503) Le Blanc puts that case, and treats it as clear that the occupier would be rateable in the parish where the brick-land lies.] Yes; but the rate is not upon the whole value of the earth which he carries away, any more than it is upon the whole value of the timber felled in a particular year. (Rex v. Mirfield, 10 East, 219.) Practically, in former times, no such question could arise, on account of the length of time which works of this sort occupied ; but the improvements of machinery have made that the work of a day, which used to be the work of years. The net annual value, communibus annis, is the rateable value; it cannot be limited to one year, for if to one year, why not to six months? In Rex v. Attwood (6 B. & Č. 277), which is greatly relied on by the other side, it was assumed that the royalty measured the amount for which the colliery would let; and it might be so in that case, for the working of a coal-pit is attended with very great expense, whilst that of a brick-field is attended with very little, and the produce is incapable of being removed to any distance. In Rex v. The Hull Dock Company (5 M. & S. 394) an attempt was made on the part of the company to obtain relief from a rate in a particular year, on the ground that in that year the expenditure in repairs exceeded the amount of the duties received; but the Court said that the average profits were not liable to be merged in the partial expenditure of any particular