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to the first of these remarks is, that it is rather a question of amount than of principle; and it does not touch the question of whether the royalty was in substance a rent. Considered as a question of amount only, the parish officers having to make the rate may well look to see what probably the land may produce in the current year. They may well proceed with a brick-field as they would with land used for the purposes of agriculture; they cannot in that case tell with certainty bow much or what may be tilled, nor what quantity of produce may be raised, still less at what price it may be sold. Yet, supposing the tenant to occupy at a rent to be ascertained in each year by the actual produce and price, as it well might be, they may reasonably, from the nature of the premises, the nature of the land and the mode of its cultivation, the preparation actually made, and other circumstances, infer what would be the rateable value in a given year. In the present case we cannot say that the nature of the occupation does not afford rather safer premises for making a calculation as to the amount; as the preparations are somewhat of a more permanent nature. It is not unreasonable to infer that the stools would not be erected but with the intention of making bricks; and that more would not be erected than for the quantity of bricks which would be required, and that more bricks would not be made than would be expected to be sold, especially as the duty to the government and the royalty to the landlord are not to be paid for on the sale, but on the making. These premises raise, at least, a primâ facie case; and if they led to an exaggerated conclusion, it was in the power of the appellant to have shewn their error by actual proof. As to the second objection, the answer is that the rate is made but for a year, and any falling off in succeeding years would, of course, operate as a reduction of the rate for those years in which the production is less. The next objection is a more important one: that it is altogether wrong in principle to consider royalty as rent; and this appears to be founded mainly on this, that it is a sum paid not in respect of the renewing produce of the land, but of a portion of the land itself, and that not consumed by slow degrees, to be exhausted at the end of a long period—as in the case of a coal-mine; under which circumstances, it is admitted it might be treated as produce, but in such large proportions that the whole in a few years will be consumed and

gone. It does not seem to us that the circumstances of a more or less rapid consumption can make any difference in principle ; the rate is always imposed with reference to the existing value-whether temporary or per, manent is immaterial. The case was supposed, of a brick-field being worked out in less than a year to meet the demand of an enormous contract for a public work. The consequence would be, the land would have a much increased value for that year, and it would be only reasonable it should bear an increased rate for that year, although in the following year its value might sink almost to nothing, and the rate would fall in proportion even to nothing, if the brickearth was exhausted, and therefore, like an exhausted coal-mine, should become entirely used up. If this were not so, an obvious injustice would be done to th other rate-payers. Suppose that two brick-fields of the same size, and worked so as to be consumed in ten years by equal working, in ten years would produce 1,0001. each, upon which a rate of 101. is paid, then in ten years each would contribute 1001. to the burthens of the parish ; let one be exhausted in the first year, the produce would have been 10,0001., but the rate is only 101. for that year, according to the appellant's argument, and it may be nothing afterwards. Whatever there may be afterwards, it is clear there would be a valuable occupation of one year, escaping nine-tenths of the rate entirely. But no injustice would be done if, in every year, the occupier was assessed according to the actual value in that year; and it is the duty of the overseers to arrive,


as nearly as they can, at that. The case of Rex v. Mirfield (10 East, 218) was mentioned in the course of the argument ; but the facts are wholly unlike those in the present cases. The saleable underwoods there produced no profit except in the twenty-one years; and here there was nothing to shew that equal profit may not arise in every year of the tenancy, be it long or short. The terms of the tenancy are fised on that assumption. The principle of that decision is in accordance with what will be our conclusion. We come, then, to the bare objection that the royalty is paid, not for the renewing produce of the land, but for several portions of the land itself, mixed up with foreign matter. The expense of this, however, must have been cast off before the royalty itself was fixed: that was a sum which, after all such expenses were paid, the occupier could afford as a rent to the landlord. When the case is thus laid bare, there is no distinction between it and that of the lease of coal-mines, clay-pits, and slate-quarries, in respect to which the occupation is only valuable by the removal of portions of the soil ; and whether the occupation is paid for in money or kind, and the amount is fixed beforehand by the contract, or measured afterwards by the actual produce, it is equally in substance a rent: it is a compensation to the landlord by the occupier of the piece of land for that species of occupation which he contracts to give. This would not admit of an argument in an agricultural case, where the tenant is to pay a certain proportion of the produce; that would be admitted to be, in all respects, a rent service, with every incident to such a rent. In Daniel v. Gracie (6 Q.B. 145) we held the same in reference to a marl-pit—a brick-mine, as the parties termed it—where the render was so much per cubic yard on the marl got, and so much per thousand of the bricks made. We are brought, then, to the conclusion that the parish officers have done right in considering the royalty as a portion of the rent; and we see no objection to the conclusion at which they have arrived, that, primâ facie, the amount of royalty reckoned in the rate will be paid in the year for which the rate is made. Still it must be always remembered that the ultimate question is that propounded by the statute ; and there fore the amount which has been paid, and which it is reasonable to infer will be paid, is only evidence, and not the fact itself to be ascertained. When, therefore, the case came to the sessions, it was open to the appellant to prove such uncertainty in the market, and also all such circumstances as shewed the parish officers to have done wrong in concluding that, from such a quantity made or expected to be made, the land might be reasonably expected to let from year to year at a rent measured by that quantity. Such evidence would have raised a question of fact for the Sessions, and they would have had, upon the whole, to sustain or reduce the amount of the assessment. It may well be that, although at the end of the year the lessee has made so many bricks that he can afford to pay 1501. as royalty to the landlord, he could not prudently, at the beginning of the year, contract, at all events, to pay more than 1001. ; and, if so, the latter, rather than the former, would be the sum at which the land may be expected to let from year to year. This, then, was what we understand the Sessions to mean in Westbrook's case, by the special finding. The parish officers estimate the rent at a supposed amount of the bricks actually made, and the royalty then payable on such amount, and from this they make such deductions as reduce the rateable value to 1591. 10s.; but the Sessions say that, placing the tenant exactly on the same footing as to the incidents of his occupation, but calling on him to say beforehand what rent he would pay per acre, he would not be expected to give more than 101. per acre, which, on the whole, would amount to little more than 1002. This latter appears the true criterion rather than the former, and the rate must be amended accordingly. But it is

not so easy to deal with Everest's case; the Sessions ask us what is the rateable value of the land; and add, “ if the sums paid are to be considered in the nature of a rent, and as such ought to form the basis of the rate, then the order is to be confirmed. If either of the modes contended for by the appellant be right, the case should be sent back for the rate to be adjusted accordingly.” Now, neither of the appellant's modes are correct, nor were contended so to be. They were in effect to rate land occupied in one mode as if it were occupied in another, those modes producing different rates of profit, and commanding different amounts of rent—than which nothing could be more unreasonable. But, on the other hand, although the sums paid are to be considered in the nature of the rent, it does not follow that they must form the basis of the rate in the sense of fixing its amount. The true question is that which the Sessions have asked, but which they must answer for themselves, by finding on the evidence according to the principle we have laid down, what is, in the words of the statute, the rent at which the land might reasonably be expected to let from year to year, remembering the purposes to which it is to be applied, and the privileges which the tenant will enjoy under his contract, and by reason of the occupation, and after making all the deductions specified by the statute. It by no means follows that this mode of examination will produce so great a change in Everest's case, as it has in Westbrook's ; the circumstances may be such as to risk, market, and competition, as may make the difference little more than nominal : the market may be so good, and the competition so great, as to make the risk almost nothing. Still this is a question for trial ; and for the purpose of trying that, this case must go back to the sessions. Both orders should go back to their respective sessions, that the rates may be amended according to the principles laid down.

Rates to be amended. B. & W.


Hilary Term.-January 28, 1847.

THE QUEEN v. GAMBLE. (a) Information under Excise Act, 7 8 8 Geo. 4, c. 53—Special case-Appeal from Quarter Sessions. The Court of Erchequer will hear the arguments on a special case sent from the Quarter Sessions,

and brought before the Court by motion, upon an affidavit, although the statute expressly reserves

the writ of certiorari to the Crown, Where, on an information containing four counts, the defendant is convicted on one, and acquitted on the other three, and appeals against the conviction, there being no appeal ly the officer, and is acquitted, the court of appeal cannot rehear the whole case so as to convict on the counts on which he was previously acquitted. HIS was a special case from the Recorder of the borough of Leeds, for the

opinion and direction of the Court of Exchequer on an appeal against the conviction of three justices of the peace of the said borough under 7 & 8 Gen. 4, c. 53.

Pashley appeared for the defendant.—This matter does not appear to be properly before the Court. It appears that the document is entitled, “In the Queen's Remembrancer's Office, and is verified by an affidavit; and I am willing to admit that that is a thing which did take place at the sessions, but

(a) Reported by T. S. COPE, Esq., Barrister-at-law.


no certiorari has been issued. It is brought here by an affidavit, entitled The Queen v. Gamble.Certainly there was no such cause at the time the affidavit was sworn. The affidavit verified a certain copy of an information, and it verifies a certain annexed document, which purports to be the record of the conviction and appeal at the sessions. The certiorari is reserved expressly by the Crown in this case.

It is curious that there should be an express reservation by the Crown of the certiorari, that being the ordinary mode. [PARKE, B.-We had one case under this Act of Parliament that has been argued before. Pollock, C. B. - My impression is, that the former case came on by motion upon an affidavit.] I should have had no difficulty on a motion for a certiorari. I may mention what in analogous cases has been the uniform practice : this sort of case has been going on in another court for a very long time, under Acts of Parliament quite analogous to the present. Your Lordship sees there is a special judgment of the Court of Quarter Sessions; it is brought up for the consideration of this Court, and the course of the Court in such cases elsewhere is to have a certiorari. I cannot conceive any other mode in which rightly the matter can be brought under the cognizance of the Court. By the statute 7 & 8 Geo. 4, c. 53, s. 84, there is a conviction before justices, an appeal to the Sessions, and a reversal of the judg. ment. It is enacted (a previous clause giving an appeal to the Quarter Sessions in such a case as the present), “ that in every such appeal it shall be lawful for the justices of the peace at the sessions to rehear, upon oath,” &c.; then it goes on to say, “ that the justices at quarter sessions are authorized and empowered on any such appeal to reverse or confirm in the whole or in part the judgment appealed against, or to give such new or different judgment as they in their discretion shall in that behalf think fit; and such commissioners of appeal, and justices of the peace at general quarter sessions respectively, shall in any such new or different judgment have the same power of mitigation as was before given to the justices who convicted. Provided always, that it shall be lawful for such commissioners of appeal, and justices of the peace at such general quarter sessions respectively as aforesaid, at their discretion, to state the facts of any case on which such appeal shall be made specially for the opinion and direction of the Court of Exchequer in England, Scotland, or Ireland, as the same shall have arisen therein respectively." Then there is another clause which, taking away the certiorari from the defendant, expressly reserves it to the Crown,-a very curious clause, because the ordinary course is without a special reservation. In this Act there is a special reservation to the Crown.

Pollock, C. B.-So far as my recollection goes in the only case that has been before us, it came on by motion and affidavit. I do not know whether the Attorney-General has any recollection of that case ?

The Attorney-General.- If your Lordship refers to the case of Reg. v, Woodrough, it came on precisely in that way; it came on by affidavit, and then a motion was made by concilium—there was no certiorari.

PLATT, B.- Is there nothing giving indirectly the benefit of the certiorari to the defendant ?

The Attorney-General.-If, instead of the Crown doing it, the defendant had wanted to take the opinion of the Court, he could not have done it if a certiorari was necessary ; therefore this is the only way in which it can be done.

Parke, B.-The difficulty presented to my mind is this: I think the regular course ought to be pursued. In the Court of Queen's Bench it is always by certiorari : that is the authentic form of getting the record before the Court.


The difficulty has just been mentioned by my brother Platt, supposing the finding is against the defendant, and the defendant wants to relieve himself from the judgment of the commissioners, or of the Court of Quarter Sessions, how is the defendant to get it up ? The Act of Parliament takes away

the certiorari from the defendant.

Pollock, C. B.-Then the answer to that is, that the certiorari is taken away from the defendant, by which he cannot remove the record, certainly: but there is a special power given to the Sessions to state the case for the opinion of the Court; and in taking away the certiorari the Act never intended to deprive the defendant any more than the Crown of a doubt raised by a special

The Attorney-General.—Here the Act says that it shall be lawful for the Court below to state the facts of any case for the opinion and direction. The Court of Exchequer has no power to give judgment. Suppose your Lordship directs the justices, that upon the state of facts the law is so and so, then they must give their judgment. If you have a certiorari you must bring up the judgment, and then your opinion and direction may be exactly what your Lordship pleases to the Sessions. They have no power to abide by it; it is all gone from them ; you cannot send it back again, and therefore it is quite plain, that in strictness you ought not to have a certiorari to bring th judgment up.

ALDERSON, B.—It is more like stating a case for the justices of assize, where the justices give their judgment in conformity with that of the judges of assize. It would be a very insufficient mode of putting it, if we put it upon the footing of a sessions case; because there, the Court of Queen's Bench, upon the same case which they remove by certiorari, say the order is affirmed or reversed: they do not make an intermediate or fresh order.

The Attorney-General.—That cannot be the proper course, because by this Act of Parliament the appellate Court have a right to give a fresh judgment altogether. They are not bound to affirm or reverse the judgment, but they may give a new judgment altogether ; then they say, “ We want the direction of the Court."

PARKE, B.—This Court is not to pronounce any judgment in that respect ; it differs from the poor-law orders, subject to a case.

ALDERSON, B.- It is like the case of an arbitrator stating a case for the opinion of the Court, where the Court have given him leave to state a case for their opinion, which is not like the case of an award, where he states the reasons. In the latter case the Court reverse the award, or sustain the award, simply ; but where, by the authority of the rule of reference, power is given to him to state a case, and he states a case for the opinion of the Court, they cannot give judgment there upon the award.

Pollock, C. B.-Mr. Pashley, the Court thinks you may be heard upon the present state of the motion.

Parke, B.-What we shall do will be to give our opinion upon the questions that we are asked. If the judgment in the alternative is wrong, then it cannot be enforced; that is another matter which we will not decide now. We will give our opinion upon the case on which our opinion and direction are asked. The words of this Act of Parliament are not such as exactly to accord with the supposition that the opinion of the Court is asked upon the same footing as the Court of Chancery asks the opinion of this Court, because certainly that Court is not bound by it; but here they ask the opinion and direction of this Court, and while the justices would be bound by that direction, and it would be a breach of the Act of Parliament if they did not follow it, still it is

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