return.

Common Law Courts.

COURT OF QUEEN'S BENCH,

fendant had at her disposal; that the defendant had
been at great losses by reason of the misconduct of
her sons, whose conduct had been so bad that
she had been obliged to exclude them from her house;
that no change of conduct had been shewn to-
wards the plaintiff which gave her any grounds for
leaving the house of the defendant and refusing to
The VICE-CHANCELLOR.-The testator, by his
will, after giving annuities of 501. per annum, during
the life of his widow, to each of his children, and
after her death the interest and proceeds of a sum of
1,7007. to the plaintiff for her life, devised as follows:
that my dear wife shall receive all the rents, divi-
dends, interest, and profits, of all and singular my
real and personal estate, and pay and apply the same
to and for the use of her my said wife and the chil-
dren of our marriage, agreeable and according to her
own discretion, during her said life." The plaintiff
had no interest in the ulterior bequests of the pro-
perty; the plaintiff had attained twenty-one in the life
of the testator, and he died in 1828; the plaintiff
continued to reside with her mother until the year
1833, when she went on a visit to her married
sister, and since that time she only occasionally
visited her mother for a short time, having prin-
cipally resided elsewhere. The defendant, the wi-
dow, and mother of the plaintiff, is still living.
The bill was filed in June 1844, and prays that the
1,7001. may be secured; that the 501. per annum may
be paid to the plaintiff, and that a proportionate part
of the residuary income may also be paid or applied
for her benefit. The plaintiff insisted that her mother,
in the exercise of her discretion, had not allowed the
plaintiff so much of that income as she is entitled to.
One of the letters from the plaintiff's solicitor, before
the suit, asked for an account and payment in respect
of the past income; but that is not asked by the bill.
The plaintiff must be entitled to an account of the in-
come of the property; for to deny that right would be
to make the widow the absolute owner of the pro-
perty, whilst it was clear that the plaintiff was en-
titled to some interest in it. The plaintiff was not,
however, entitled, in this stage of the cause, to any
thing more than that account. With respect to the
exercise of a discretion, I had on a former occasion,
in the case of Cafe v. Bent, 3 Hare, 245, to consider
the extent to which the Court would interfere with
the discretion which the testator might think proper
to give to a trustee. A testator could give all to a
child; so also he could give it to his widow, and at
her discretion. The question in all such cases was,
whether an honest and sound discretion had been ex-
ercised; upon that the plaintiff has a right to have
an inquiry, and the Court, upon complaint, will
direct an inquiry into the exercise of the discretion.
But the Court will not alter the gift or deprive the
party of the discretion which the testator has given;
for, under the exercise of a sound and honest discre-
tion, the legatee obtains all that the testator intends
for him. The mere circumstance that one of the
parties intended to be benefited was dissatisfied with
the manner in which the discretion was exercised,
was no reason why this Court should disturb that
exercise; the Court might, in such a case, re-
quire the discretion to be exercised under the
view of the Court, or otherwise occasions for
a new suit might occur from day to day. If this view
of the case had been taken by the advisers of the
plaintiff, the case would have been disposed of almost
as one of course; and it was much to be regretted that
the plaintiff had not been satisfied with the simple
statement of the will, and the present situation of the
family, seeking the directions of the Court accord-
ingly. The plaintiff, however, had unfortunately
attempted to make a special case, alleging on her bill
that, some time after the death of the testator, the
defendant, Ann Costabodie, had become bent upon
accumulating money out of the income of the pro-
perty; that she had treated the plaintiff's brothers
with so much harshness and severity that she had
driven two of them from her roof; that she had re-
nounced all society, and had kept the gate and door
of her house where they had resided locked and
chained, in order to exclude two of her sons who
resided in the neighbourhood; whereupon the
plaintiff went to reside in the county of Lei-
cester. This statement had led to cousequences
which were inevitable. The defendant had gone Edward Westbrook's assessment amounted to
into evidence to disprove these allegations, and to 1591. 10s.; and was calculated upon the sum payable
justify her conduct; but the plaintiff had produced to the landlord for the number of bricks capable of
no evidence in support of the allegations in the bill; being made, together with the sum of 21. 6s. per acre,
they must therefore fall to the ground, notwith- deducting a per-centage for waste, &c. and another
standing her counsel at the bar stated that those alle-per-centage for the land dug out, and the materials
gations were true, and that she had abstained from used in making the bricks.
proving them by evidence solely out of regard to the The case found that the present rate was much
feelings of her mother. Such a consideration ought
equally to leave induced the plaintiff to abstain from
bringing forward the charges by her bill; it was
these allegations which had created the chief expense
of the suit. The statements were, in fact, contradicted
by the whole tenor of the correspondence between the
widow and her children, which was put in evidence.
There certainly appeared in this case to have been an
apparent disproportion between the allowance to the
plaintiff and her brothers; but this dispropor-

seven years at least, unless the clay should be sooner exhausted; that the appellant held under such lease, and in addition to 201. per annum, or rather less than 21. per acre, paid the landlord a royalty of 1s. 6d. for every 1,000 of bricks made; that the rent, which a tenant, taking a lease thereof, with liberty to consume the clay, but without any liability to pay a royalty in respect of the bricks made, would be willing to pay was 10. per acre; and that, deducting therefrom the usual tenant's rates and taxes, the appellants contended that that was the highest sum upon which they could be rated. But the respondents, on the other hand, contended that the rent and the royalty together (after making proper deductions) gave the true criterion of rateable value.

The appellants also contended that, even if the respondents were right in valuing the occupation by the capabilities of producing bricks, still the land ought not to be subjected to the additional charge of 21. 6s. per acre, as other lands were rated; and that, if that 21. 6s. ought to be added, deductions ought to be allowed for tenant's rates and taxes, as well as for interest on the capital invested. It the Court of Queen's Bench should be of opinion that the respondents' mode of rating was correct, the order of Sessions was to be affirmed; otherwise to be quashed, and the rate to be amended, and such other order made as to the Court shall seem just.

tion might be more apparent than real, for the
plaintiff had lived with her brother, and thus
had the benefit of his increased allowance.
And it must also be considered that the position of
sons and daughters was different: the sons were
obliged to have the family residence in order to pro-
secute their avocations in the world. One or two of
the sons, it appeared, were in the army, and another
in the church; and for those purposes, without any
improper exercise of the widow's discretion, she
might have applied a larger proportion of the income
to their use than to the use of a daughter, who, hav-
ing the option of living with her mother, had chosen
not to do so, but rather to live separately from her
mother, and that not only not for the purpose of do
ing any thing for her own support, but rather, as it
appeared, resenting the proposal that she should do
any thing for her own maintenance. I shall not now
express any opinion upon the conduct of the parties
beyond this, that it does not necessarily appear, so far
as the case is before me, that the widow has not
acted towards her daughter, the plaintiff, with justice
and discretion; for it appears from the correspond-
ence that the defendant had offered to add annually
the sum of 40l. to the annuity given to the plaintiff
by the will, and the plaintiff had only asked for the
addition of 50l. On the whole, I see no reason for
directing any further reference than in an ordinary
case of a bill asking an account; there must, there- This case was argued on Saturday January 16.
fore, be an inquiry as to what children the testator Martin, Q.C. and Clarkson, in support of the rate.
left; and an account must be taken of what the resi--The rate is too small rather than too large. The pro-
due now consists, and of the amount of the income per amount of the rate is the actual rent of the land,
derived from it, and what incumbrances there are and the amount of royalty which, in the ordinary
upon the property, and an inquiry as to whether the mode of working the brick field, would have to be paid
defendant is entitled to dower out of any part of the to the landlord. Unquestionably the clay taken is
estate, and whether the 1,7001. has been raised, and rateable. (R. v. Brown, 8 East, 528; R. v. Alber-
if not, what provision must be made for raising it, bury, 1 East, 534; R. v. Woodland, 2 East, 164.
and the Master to be at liberty to report specially any [COLERIDGE, J. mentioned R. v. The New River
proposal which may be made by the defendant as to Company, 1 M. & S. 503, per Le Blanc, J.]_Then
the application of the whole or any part of the future as to the scale of rating, R. v. Attwood, 6 B. & C. 277,
income.
is a distinct authority for the respondents; and in
R. v. Bedworth, 8 East, 387, Lord Ellenborough,
C. J. said:"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."
That is the principle upon which the present rate has
been calculated. It is a rate calculated upon the im-
proved value of the land during the period for which
the rate is made; and that is the rule established by
all the old cases. (R. v. Mirfield, 10 East, 219; R.
v. Hull Dock Company, 3 B. & C. 553; R. v. Lord
Grenville, 9 B. & C. 188.) It is obvious that as a
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? The earlier part of that section
applies to the ordinary subjects of rating, houses and
land, and the proviso to mines and the like; with
regard to which a different principle of rating is ap-
plicable, because in the one case the subject matter of
the rate is renewable, whilst, in the other, it is an-
nually destroyed by being used. [COLERIDGE, J.
referred to R. v. Capel, 12 Ad. & E. 382, as to the
construction of that proviso.] No case of this sort
was suggested there, but the liability must surely be
different in the two cases,-one, where the subject-
matter may be rapidly exhausted, and the other
where it is annually renewable. [COLERIDGE, J.-
But then you fail to carry out your own principle,
because you take an average.] That arises from the
necessity of making the rate prospectively. The first
point made by the appellants is that the rate ought
not to be imposed upon any higher amount than the
rent of 107. 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. 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 R. v.
Woodland, and answered. 3. The appellants object
higher than any previous rates upon the same pro-to the additional charge of 21. 6s. per acre, which is the
perty; that in brickmaking various foreign materials amount at which other lands in the parish are rated;
were necessarily used; that a considerable capital but the tenant pays a rent for the land in addition to
and great skill and care were required; that the ma- the royalty, and the amount of the royalty is of course
nufacture was of a precarious nature, and subject to estimated accordingly. 4. It is said that the deduc-
great risks and losses, particularly mentioned. The tions are insufficient, and further deductions are
quantity of bricks which had been and could be claimed for tenant's rates and taxes, and also for in-
made on the field in question was also stated.
terest 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

Thursday, Feb. 25.
REG. v. WESTBROOK.
REG. v. EVEREST.
Rating of brickfields.
Brickfields, like other property, are to be rated upon an
estimate of the rent at which the same might reason-
ably be expected to let from year to year, consider-
ing the purposes to which the land is to be applied,
and the privileges which the tenant will enjoy by
reason of his occupation, after making the deduc-
tions required by the statute 6 & 7 Wm. 4, c. 96,

s. 1.

The royalty which is usually paid to the landlord on
the number of bricks made, in addition to a certain
fixed sum, is part of the rent, and is therefore to be
taken into account in estimating the rent; but where,
upon a case stated, it was found that 101. an acre
was the rent which a tenant, taking a lease with
liberty to consume the brick-earth, without liability
to pay any royalty upon the number of bricks made,
would be willing to pay, Held, that that was the
proper criterion of rateable value, rather than the
quantity of bricks which had been made in former
years, and the capability of making the same quan-
tity in the year of rating.

The rate is to be imposed on the existing value, whether
temporary or permanent; and the value in any
given year is a question of fact for the Sessions, to
be decided by them with reference to the state of the
market, and all the other circumstances of the case.

REG. v. EDWARD WESTBROOK.
Upon appeal against a poor-rate, the Court of
Quarter Sessions for the county of Middlesex con-
firmed the rate subject to a case.

The appellants are brickmakers, occupying ground
for that purpose in the parish of Heston, Middlesex;
and the question raised was as to the amount of
the annual value of the land so occupied for the pur-
poses of rating.

It was further found that brickfields of above ten acres were not usually taken except upon lease for

rent agreed upon gives the rateable value without
those deductions.
Hill, Q.C. 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. The true principle of rating is to make
the rate with regard to the permanent value of the
property rated; and so under 6 & 7 Wm. 4, c. 96,
houses and grass land are rated; but the rating of
quarries and coal-mines under the statute of Eliz.
has been referred to as a precedent in this case.
Formerly coal-mines and quarries could only be
worked out in the course of a great number of years;
and no practical inequality resulted from the system
recognized in the older cases; but it was soon found
that between different sorts of property, as houses
and land, a different mode of rating ought to be
adopted; and accordingly different sorts of property
were rated at different proportions of the rent. (R.
v. Brograve, 4 Burr. 2491.) In that way the differ-
ence between permanent property and property renew
able only at great expense, if at all, was removed.
(R. v. Tomlinson, 9 B. & C. 163.) But now parishes
are bound to assess upon the whole rent, making the
statutable deductions. The appellants, therefore,
contend that in the same way as a depreciation fund
is set aside for rebuilding a house, when it shall no
longer be habitable, and is allowed in the rate, so
there ought to be, in a case like the present, a similar
deduction for the purchase of another brick-field,
when the one rated has been worked out; so that one
equal value may be obtained. The net annual value,
communibus annis, is the rateable value. (R. v. The
Hull Dock Company, 5 M. & S. 394; R. v. Mirfield,
10 East, 219.) In R. v. Attwood, 6 B. & C. 277, 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 inca-
pable of being removed to any distance. The cases
of R. v. Woodland, R. v. Alberbury, and R. v. Brown,
only decide that land thus used is rateable. [They also
referred to R. v. Ferrybridge, 1 B. & C. 375; and R. v.
Brettell, 3 B. & Ad. 424.] Lastly, there must at
all events be a deduction on account of tenant's rates
and taxes, and the expenses necessary to maintain the
property in a state to command the present rent.
Bricks are an article of manufacture; and are not,
therefore, on a footing with coals or clay, which are
not manufactured. If, instead of a royalty, bricks
were to be delivered to the landlord, he could not be
rated on that account; but in Rowles v. Gells, Cowp.
451, it was held that the owner of mines, receiving
from the miner a portion of the mineral raised, was
rateable for such portion. The stat. 6 & 7 Wm. 4,
c. 96, s. 1, points out these deductions as necessary
to be made in all cases which do not fall within the
proviso at the end of that section; and that proviso
has always been understood to apply to tithes only.
Deedes (amicus curia) mentioned that there was
another case in the Crown paper raising the same
point.
Cur, adv. vult.

REG. v. HENRY EVEREST.
An appeal by Henry Everest against a poor-rate,
dated January 31, 1845. The Quarter Sessions con.
firmed the rate in all points, subject to the opinion of
the Court of Queen's Bench on a case; the material
parts of which were as follows:-

as

last ten years, the attention of the parish officers was to the landlord, considering as well the royalty as the
drawn to the subject, and the following resolution fixed sum to be rent, and to be the proper criterion
was passed at a vestry holden on the 10th of Octo- for assessing the amount which a party may be
ber, 1844:-"Resolved, that the several brickyards reasonably expected to pay as rent from year to year,
in the parish be rated at 1s. per thousand upon the free of such charges, and making such deductions
supposed number manufactured at each stool, con- the statute specifies. Now, in the case of
sidering it a rental upon each stool." Five hundred Westbrook, the Sessions found that the rent which
thousand bricks are made at each stool. In pursu- one taking a lease would pay, with liberty to consume
ance of the resolution, the actual rateable value of the soil and clay, or brick-earth, without any
the brickfield was endeavoured to be ascertained liability to pay any royalty in respect of the
by a calculation of the number of bricks made. The number of bricks made, would be the sum of 107.
net rateable value was varied from 951. 15s. to 5501. per acre only. No finding, corresponding with
by a rate made on the 10th of October, 1844, which this, appears in the case of Everest. The question
assessment was paid under protest. Another rate we have to determine is, whether the principle on
was made, in which the appellant was rated on an which the parish officers proceeded is correct with
estimated value of 6451. 10s. and a rateable value of reference to the Parochial Assessment Act? We must
5501. He appealed on the ground that the yearly presume the amount to be correct, both as to the
value was put too high. The case further stated, royalty and as to the deductions made; and no ques-
that the clay or brick-earth dug in the land in tion involving any difficult principle was raised as to
question was never sold as such, and is only one of the nature or number of these last. It will be
the materials used in the manufacture of bricks. The convenient, first, to consider the question without
other materials used in the manufacture of bricks, viz. reference to the special finding in Westbrook's case,
chalk, sand, ashes, and breeze, must be brought to and then to see whether that finding makes any dif-
the brickfield from other places. The manufacture ference in the decision of that case. It is objected by
is attended with great risk and uncertainty; and in the appellant, in the first place, that it is a fallacy to
the progress of making, the bricks are exposed to infer that because there are so many stools on the
cousiderable damage from rains and other accidental ground, from which so many thousand bricks may be
causes; for which, however, an allowance is made made in each year, so many will in fact be made and
of one-tenth by the excise in charging the duty. paid for; or that, because so many have in fact been
When the rate appealed against was made, the ap- made and paid for in one year, that the same or an
pellant had twenty-two stools for the purpose of equal number will be made and paid for in the follow-
brick-making. The sum of 800l. per annum is ne-ing year and years; and no doubt the conclusion does
cessary for the proper working of each stool. The not follow with certainty from the premises. But the
sum paid by the appellant to Mr. Hankey, the laud- answer to the first of these remarks is, that it is
lord, under the memorandum of agreement, at rather a question of amount than of principle; and it
2s. 3d. per thousand on the bricks made, amounted does not touch the question of whether the royalty
in the year 1840 to 1,010l. 93. 6d.; in 1841, was in substance a rent. Considered as a question of
to 9281. 1s. 4d; in 1842, to 960l. 7s. 2d.; in amount only, the parish officers having to make the
1843, to 9531. 13s. 3d. ; and in 1844, to 1,3247. 49. 9d. rate may well look to see what probably the land
It was contended for the appellants, first, that the may produce in the current year. They may as well
land in question ought not to be rated higher than proceed with a brick-field as they would with land
11. 10s. per acre, which is the average value to let and used for the purposes of agriculture; they cannot in
for the purpose of rating of ordinary agricultural that case tell with certainty how much or what may
lands in the parish. Secondly. That if any addition be tilled, nor what quantity of produce may be raised,
is to be made in respect of the land containing brick- still less at what price it may be sold. Yet, sup
earth the sum per acre ought not to exceed 51. 10s. posing the tenant to occupy at a rent to be ascer-
which is the average value of the best garden-ground tained in each year by the actual produce and price,
in the parish, to let by the acre. The respondents as it well might be, they may reasonably, from the
contend that the sum actually paid to Mr. Hankey nature of the premises, the nature of the land and
for bricks made upon the land, rented under the memo- the mode of its cultivation, the preparation actually
randum of agreement, was to be considered as the made and other circumstances, infer what would be
rent which the appellant bound himself to pay, taking the rateable value in a given year. In the present
all the chances of making the trade of brickmaking case we cannot say that the nature of the occupation
profitable; and the mode by which the parish arrived does not afford rather safer premises for making a
at the amount of bricks made was immaterial. It is calculation as to the amount; the preparations are
admitted that if this view be correct the amount of somewhat of a more permanent nature; it is not un-
the rate does not exceed the rateable value of the reasonable to infer that the stools would not be
land, after making all lawful deductions. The other erected but with the intention of making bricks; and
rateable property in the parish is rated upon an esti- that more would not be erected than for the quantity
mate of the net annual value thereof within the mean- of bricks which would be required, and that more
ing of the Parochial Assessment Act, 6 & 7 Wm. 4, bricks would not be made than would be expected to
c.96. The question for the opinion of the Court is, what be sold, especially as the duty to the government and
is the net annual rateable value of the land in question? the royalty to the landlord are not to be paid for on the
If the sums paid by the appellants under his agree- sale, but on the making. These premises raise, at
ment are to be considered in the nature of rent, and least, a primâ facie case; and if they led to an exag-
as such ought to form the basis of the rating, the gerated conclusion, it was in the power of the appel-
order of Sessions is to be confirmed. If either of the lant to have shewn their error by actual proof. As to
modes contended for by the appellants shall be con- the second objection, the answer is that the rate is
sidered correct, it must be sent back to the Sessions, made but for a year, and any falling off in succeeding
that the rate may be adjusted accordingly.
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 circum-
stances, it is admitted, it might be treated as pro-
duce, 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 princi-
ple; the rate is always imposed in reference to the
existing value, whether temporary or permanent, is
immaterial. The case was supposed, of a brick-field
being worked out in less than a year to meet the de-
mand 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 brick-earth 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 the other rate-
payers. Suppose 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 1,000l. each,
upon which a rate of 101. is paid, then in ten years
each would contribute 100l. to the burthens of the
parish; let one be exhausted in the first year, the pro-
duce would have been 10,000l. but the rate is only
101. for that year, according to the appellant's argu-

JUDGMENT.

Cur. adv. vult.

Sir F. Thesiger, Q. C. and Bodkin, in support of the order of Sessions.-The real object of the agreement is to fix the rent proportionately to the amount of bricks made; and if this be so, the Sessions have judged The appellant occupied a piece of land in the parish right. In other words, it is what a tenant would of Triadsbury, containing brick-earth, and used as a give. They cited Rex v. Brown, 8 East, 528; 6 & 7 brickfield, and also some cottages adjoining. He Wm. 4, c. 96; Reg. v. The South-Western Railway had occupied under an agreement of July 31, 1835, Company, 1 Q. B. 538; Rex v. Mirfield, 8 East. for three years, from Christmas 1834, and had con- M. D. Hill, Q. C. Deedes, and Pashley, contrà, tinued to hold upon the same terms, viz. "To make cited Rex v. Milton, 3 B. & Ald. ; Rex v. Tomlinson, or pay for one million of bricks, at least, for each year 9 B. & C.; Rex v. The Birmingham Gas-Light Comof the above period, at the rate of 2s. 3d. per thou-pauy, 1 B. & C. 510; and referred to the argument sand, and so on for every thousand beyond the said in the former case, suprà, which, together with the million, to be considered and estimated by and between judgment, renders a fuller report here unnecessary. the parties hereto to be the same number as the duty to the king is actually paid for, such payment to be considered due and payable as a rent, and to be made on the 25th day of March and the 29th day of September in each year, during the said term hereby granted, and in each and every year during which the said H. Everest continues to occupy the said brickfields and cottages at Whitewall aforesaid ;" and a power of distress was also given by the agreement. And it contained the further provision that, whereas the said H. Everest was desirous of occupying, for other purposes than brick-making, the remaining part of the piece of land called Brickfield, he should pay, over and above what was to be paid for brick-making, 31. per acre for nine acres of the said field, and to pay for the crops and husbandry upon the land when he commenced occupation. The appellant occupied, for the purpose of brick-making, the said brickfield for fifteen years, and was always rated, prior to 1844; as upon an estimated value of 101. 10s. 10d. or rateable value of 981. 15s. The making of bricks having greatly increased during the

Feb. 25.-Lord DENMAN, C. J. now delivered the judgment of the Court.-These cases were sent from the sessions of Middlesex and Kent, and may be conveniently considered together, being intended to procure a decision on the same question,--the proper mode of rating the occupiers of brick-fields for the relief of the poor. The material facts found in both cases are nearly the same. In both it is stated that much expense was incurred in the introduction of foreign matters, necessary to make the occupation productive and profitable; and the result was liable to much risk. It is understood, therefore, if not made legally certain, that the tenancy should be of some years' duration, and the rent in part fixed and in part made to depend in the nature of royalty on the number of bricks made. The material, the brickearth, is not in its nature renewable, and in both cases would be consumed, according to the respective calculations, in no great number of years. The basis of the rate has been the supposed total amount paid

APRIL 10.]

ment, 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 equal profit may not arise in every year of the tenancy, be it long or short. The terms of the tenancy are fixed 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 We are brought, then, thousand of the bricks made. to the conclusion that the parish officers have done right in considering the royalty as a portion of the reat; and we see no objection to the conclusion at which they have arrived, that, prima 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 pro. pounded by the statute; and therefore 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 had 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 Such evidence rent measured by that quantity. 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 ment.

at a

assess

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 1507. 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 reduces 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 10l. per acre, which, on the whole, would amount to little more than 1007. 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 to form the basis of the rate, then If either of the modes the order is to confirmed. contended for by the appellant be right, the case should be sent back for the rate to be adjusted accordingly. Now, neither of the appellants modes are correct, nor were contended so to be. They were in effect to rate land occupied in one mode if it were occupied in another, those modes producing different rates of profit and commanding different amounts of rent,-than which nothing But, on the other could be more unreasonable. 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 asked, but which they must answer for themseives, by finding on the evidence, according to the

as

THE LAW TIMES.

principle we have laid down, which is in the words of
the statute, what is 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 examining will
the circumstances may be
produce so great a change in Everest's case, as it
has in Westbrook's;
such as to risk, market, and competition as may
make the difference little more than nominal;
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 ses-
Rates to be amended.
sions, that the rates may be amended according to the
principles laid down.

June 26, Dec. 17, 1846, and Jan. 26, 1847.
FORD v. BEECH.

Set off-Judgment.

the

4 plea of set-off is divisible; so that, if enough is
proved under it to cover so much of the plaintiff's
demand as is left unanswered by the other pleas, the
defendant is entitled to the verdict, though the set-
off, if pleaded alone, would not have answered the
plaintiff's demand.

But where one of those pleas was an accord and satis-
faction which was a bar to the then action, but not to
a future action if there should be a breach of the
accord, the Court directed that instead of a general
verdict it should be entered that the plaintiff, before
and at the time of the commencement of the suit
was indebted to the defendant in a larger sum than
the sum of 151. (being the sum left unanswered, ex-
cept by the plea of set-off.)

Assumpsit. The facts and pleadings are detailed in
the judgment, the report of which was delayed in
consequence of the subsequent application (see infra.)
Cause was shewn by Humfrey, Q.C. and V. Lee, at
the sittings after last Trinity Term, and Knowles,
Q.C. and Cross were heard in support. Besides the
cases mentioned in the judgment, Falcon v. Benn, 2
Q. B. 314; Sharman v. Stevenson, 2 C. M. & R. 75,
were cited.

JUDGMENT.

the set-off for that only would not have covered the three other counts. In the present case, the pleas of accord and satisfaction and non assumpsit answer the whole of the plaintiff's demand, except that which arises under the third count; and as the amount proved under the plea of set-off exceeded the amount of the plaintiff's claim, and as the three other different pleas taken altogether answer the whole of the plainbe for the defendant on the plea of set-off, which is tiff's demand, we therefore think the verdict should Judgment for defendant. undoubtedly in accordance with the merits of the case.

In Hilary Term an application was made to the Court to mould the judgment, on account of the peculiar nature of the plea of accord and satisfaction. After time taken to consider, the Court delivered the following

JUDGMENT.

Lord DENMAN, C. J.-I delivered a judgment which we had come to (my brother Wightman and myself) some days ago, but from several circumstances pointed out on this record it required further consideration. I do not repeat what we said on that occasion, which was that we adhered to the doctrine in Moore v. Butlin and Tuck v. Tuck, and that we thought those authorities ought to be sustained. But now it appears the pleas of accord and satisfaction in this case only shew the accord and satisfaction up to the time of the action brought; and though those pleas are an answer in the present action to those counts to which they are pleaded, they do not shew any bar to the plaintiff's right to maintain the action if there should be any further breach of the accord mentioned in the plea. On this state of the pleadings, if the verdict be entered generally for the defendant on the plea of set-off as pleaded to the whole declaration, the plaintiff might be under some difficulty in case he brought another action, on some subsequent failure, to satisfy the accord mentioned in the special plea. We therefore think it better the verdict on the plea of set-off should not be entered for the plaintiff generally; but that the plaintiff, before and at the time of the commencement of the suit, was indebted to the defendant in a larger sum than the sum of 157. perfect accordance with the principles referred to and and then upon that verdict the defendant would be cited, and if this case had occurred before the new entitled to judgment on the whole record. This is in rules of pleading were adopted, non assumpsit might have been pleaded to the set-off, and the same result would have followed. Therefore we do not alter our judgment.

Circuit Reports.

NORFOLK SPRING CIRCUIT.
Bury St. Edmunds, Friday, March 26.
(Before POLLOCK, C. B.)
REG. v. COOTS AND ANOTHER.
Burglary-Evidence-Possession.

to have been effected by breaking open a window at
the back of a house:
In an indictment for burglary, the entry was proved

with an impression in the front garden, not proved to have been made during that night, was not any eviHeld, that the correspondence of the prisoner's shoe dence to go to the jury to shew a connexion with such entry.

2.

Dec. 17.-Lord DENMAN, C. J. now delivered
the judgment of the Court. This was an action of
assumpsit: the first count of the declaration is on a
promissory note for 1401.; the second on another for
2007.; and the third count on a bill of exchange ac-
cepted by the defendant for 210l. with an averment
There were also counts for
that the defendant had paid 1951. in part of the bill,
leaving 157. unpaid.
The first plea traverses the
money lent, and an account stated. The defendant
pleaded eight pleas.
making the notes and accepting the bills; the fourth,
non assumpsit, to the money counts; the fifth is a
special plea to the first and second counts on the two
promissory notes of accord and satisfaction; the 1.
sixth was a special plea, as to 2001. part of the sum
mentioned in the money counts, of accord and satisfac
tion; the seventh was a general plea of payment to
the whole declaration; and the eighth was a general
plea of set-off to the whole declaration. On these
facts the jury found a verdict for the defendant on the
fourth, fifth, and sixth issues; for the plaintiff on
the first, second, third, and seventh; and it was ad-
mitted as to the eighth that the plaintiff was indebted
to the defendants in an amount exceeding 151. but
not equal to the amount stated in the promissory
notes and the bill of exchange. It thus appeared on
the whole case that the defendant had, by his fourth,
fifth, and sixth pleas, answered the case of the
plaintiff as far as regarded the counts on the two pro-
missory notes and the money counts; but that the
of exchange mentioned in the third count, was unan-
plaintiff's claim of the 151. remaining due on the bill
swered, except by the plea of set-off. The question
was, whether, as that plea was pleaded to the whole
declaration, which, if it stood alone, it did not an-
swer, it was available as a defence to the third count,
enough being proved under that to answer the demand
in that count, though not enough to answer the elaim
in that count and the others, if taken altogether. The
judge at the trial was inclined to think, that as the
sum claimed in the three first counts were certain and
specific, the plea of set-off should have been limited
to the third count, or to so much of the declaration as
it could answer; and directed a verdict for the plaintiff
upon the plea of set-off, which entitled him to 151.
damages, with liberty to move to enter the verdict for
the defendant, if the Court should be of opinion that
he was entitled to have it under the foregoing circum-
stances. The case was argued before my brother
Wightman and myself; and, in consideration, we are
of opinion the case falls within the principle that may
be considered as established by the cases of Cousins v.
Paddon, 2 Cro. M. & R. 547; Moore v. Butlin,
7 A. & E. 547; and Tuck v. Tuck, 5 M. & W. 109,
that a plea of set-off is divisible to this extent, that if
enough is proved under it to cover so much of the
plaintiff's demand as is left uncovered by the other
pleas, the defendant is entitled to the verdict, though

two boys were found concealed in a corn-chest in an open gig-house with which they were not in any way On the night following the commission of a burglary, connected, and half a mile from the house of the prosecutor. Outside the corn-chest were found some of the stolen property, and on the loft over the gighouse was found another portion of the stolen property:

boys of any of the stolen articles. Held, that there was no evidence of possession by the

The indictment charged that the prisoners, who were brothers, and boys of fourteen and eleven, on the 5th of February committed a burglary in the dwelling-house of E. Cupper, and stole therefrom a liquor-case, two glass stoppers, a wine-glass, two stone bottles, and an umbrella.

Sanders, for the prosecution, proved that the entry was effected at a back window, through an opening six inches wide; that the articles named in the indictmeat were missing; that the liquor case was found next day broken up in the yard, and that in the front garden was the impression of a foot which corresponded with the shoe of one of the prisoners, who were both discovered on the following night lying concealed in a corn-binn in an open gig-house attached to a house about half a mile from that of the prosecutor. It also was proved that some of the stolen property was discovered hidden in some rubbish near to the corn-binn, and some more hid in a loft over the gig-house. When asked to account for their being there, the prisoners said they went there to sleep out of the cold; but they did not make any claim to the property found near POLLOCK, C. B. said he doubted whether there was them, and both of them were at that time sober. At the close of the case for the prosecution, any case to go to the jury. It seemed to him that the charge had not been made out beyond mere suspicion.

Sanders contended that there was abundant prima doubtedly a very clumsy mode of drawing a check; facie evidence to go to the jury. The burglary must the words are jumbled up which ordinarily constitute have been committed by one or more young persons, a check, but it is still a check. It is just as if in and the correspondence of the shoe of one of the pri- printing a libel the type had slipped and the words or soners with the impression in the garden near the letters had thereby become transposed. I certainly house was of itself sufficient to connect them with think that this is such an instrument as will support the entry. He also submitted that the place and cir- this indictment, and the objection must be overruled. cumstances under which the prisoners and the stolen The prisoner then withdrew his plea of not guilty, property had been discovered on the night following, and pleaded guilty; whereon he was sentenced to proved a possession of the stolen property by them, twelve months' imprisonment. and was sufficient to go to the jury.

On the 5th of February, I saw the defendant in the hunting-field. Just as the hounds met at the Counthill, the defendant called me on one side, and said, "This is a very horrible business about Mr. C." In an indictment for highway robbery, accompanied by I said, "What is it?" He said, "Horrible, most violence, witnesses were called for the prisoner, to shew horrible!" I said, "Is it an unnatural offence?" that he had received certain marks of blood on his He said, "Yes, it is most horrible, upon his wife." I coat before the robbery: Held, that it was compe- said, "How do you know it?" He said, "From infortent to the prosecution to put in the prisoner's state- mation which I have received, a maid-servant, when they ment before the magistrate, wherein he gave a dif-were at Scarborough, was sleeping in the next room, erent account of the same matter.