poor.

16Vin. 414. (C) Orders as to Children of Parents being rated.

THE defendant was indicted for refufing to obey an order of

feflions for maintaining his two infant grand-children. It was moved in arreft of judgment that this is a new offence, created by 43 Eliz. c. 2.f. 7. for which a particular penalty and a specific method of recovering it is given, and that therefore the party cannot be punished by indictment. Sed per Lord Mansfield

In the prefent cafe a remedy existed before the ftatute, for dif obedience to an order of feffions is an offence indictable at com. mon law, so that there are two remedies, of which the prefent is Rex v. Robinfon, 2 Burr. 799.

one.

16Vin. 424.

(D) Poor Rates.

1.

IF

By whom made, and how.

F the overfeers refuse to make a rate, the court of K. B. will grant a mandamus to compel them; but not to make an equal rate, for it is to be prefumed the overfeers will do juftice; and if not, the proper remedy is by appeal to the fellions. Rex v. Barnstaple, 1 Barnard. 137.

2. So the court refused to grant a mandamus, directing them to infert particular perfons in the rate upon affidavits of their being left out to prevent their having votes for parliament men, Rex v. The Churchwardens of Weobly, 2 Stra. 1259.

3. A motion for a mandamus was made to direct the justices of Canterbury to rate perfonal property, but the rule was dif charged on fhewing cause. Rex v. Jufices of Canterbury, 1 Bott by Conft, 112. pl. 154.

4. A motion was made for a mandamus to the officers of St. George's Middlefex, to make a monthly rate, the rates now being made quarterly. Lord Mansfield said, it seemed full as well to make a rate for three as for one month, and discharged the rule, E. 10 G. 3. 2 Bl. Rep. 694.

5. The feffions have no original power to order an affeffment to be made, but only if it come before them by way of appeal, and a rate was quafhed on this gound without defence. Rex v Aberford, Eaft. 2 Lord Raym. 798.

I.

1. A

Of allowing the Rate.

Mandamus iffued to the juftices to fign a poor rate made by the churchwardens and overfeers. Before the return a motion was made to fuperfede it on feveral objections to its fairness, and that this would be fpeedier and better for the poor than to reserve the debate of them for a formal return. Sed per cur.-The two juftices are neceffary to fign the rate only by way of form, for it is the churchwardens and overfeers who are to make it. Whether it be a fair rate is a queftion intended for the jurifdiction of the feflions, and not for our examination; and on the juftices returning, that they could not allow the rate as not being proper, the court quafhed the return, and ordered an attachment. Rex v. The Justices of Dorchester, Stra. 393. Rex v. Uttoxeter, Eaft. 5 G. 1. S. P. 3 Dougl. on Elect. 142. in notes.

2. So where juftices kept out of the way to avoid being served with a mandamus to fign a poor rate, the court granted an attachment for the contempt. Rex v. Edwards and Symonds, Black. Rep. 631.

3. Mandamus to the juftices of Wotton Baffet to allow a rate, return, that ever fince 43 Eliz. c. 2. the juftices have appointed four, three, or two overfeers within the borough, and that they have always made rates within their jurifdiction, and that the rate offered to them was made by overfeers appointed by the juftices of the county, and not of the borough. Per cur.—The return must be confirmed. Rex v. Folly, Trin. 27 & 28 G. 2. by Conft, 62. pl. 80.

2 Bott

Perfonal Property. 16 Vin. 425

1. N the King and Witney, Lord Mansfield doubted of the opinion that a tradefman is taxable for his stock in trade, as is reported in Reg. v. Barking, Ld. Raym. 1280. 16 Vin. Abr. 425. pl. 7. and faid that the queftion there was not before the court. 5 Burr. 2634 See alfo Rex v. Justices of Canterbury, 1 Bott by Conft, 112. pl. 154.

2. A poors' rate was made, which on appeal the feffions quashed, ftating, as the ground in their order, that it appeared to them that A. B. and C. were poffeffed as co-partners of stock in trade, and business of common brewers and maltsters in the parish of R. to the value of 4000/. for no part of which had the copartners been affeffed in the rate, and that it don't appear that ftock in trade had ever before been rated in that parish. The court inclined to think the property not rateable, but quashed the order of feffions, on the ground that the juftices had quashed instead of amending the rate. Rex v. Ringwood, Cowp. 326.

3. It is a very different queftion, whether perfonal property is to be rated to the utmost extent, or not at all. It would make the poor laws very oppreffive if every man who has money in the funds fhould be liable, lawyers for their fees, foldiers for their pay, and the like. But where men are occupiers of houfes and have a stock in trade, whether that may be taken into confidera. tion is a different question; fome personal estate may be rateable, but it must be local and visible property, within the parish. It would be material to state what has been the custom of rating; if the ufage has been to take in stock in trade, there would be very good right to fupport it, Per Lord Mansfield, Rex v. Churchwardens of Andover, Cowp. 550.

4. On fhewing cause against a rule for quafhing an order of feffions confirming a poor rate, it appeared that the appellant was a clothier, and was rated in refpect of his ftock in the cloathing trade which he had in the parish, Lord Mansfield asked what ufage had heretofore been in this place with refpect to rating ftock in trade; and being told that it was waived by agreement, he faid it could not be, and that the cafe must be sent back to the feffions to state the ufage, when it appearing to be the custom there to rate perfons for their stock in trade, the court ordered the rate to ftand. Rex v. Hill, Cowp. 613,

5. So where a butcher was rated for his stock in trade in a parish where the uninterrupted ufage fince 43 of Eliz. had been to rate it, the rate was affirmed. Rex v. Jame Rodd, Cald. 147,

6. An officer is not rateable to the relief of the poor for his falary as fuperintendant of falt works in the parish. Rex v. Shallfeet, Bott by Conft, 109. pl. 152. 4 Burr. 2011.

7. Ships are rateable in that parish where the port is from whence they trade. Rex v. S. White and others, 4 Term Rep. 771. Nol. Rep. 112.

8. The intereft of money is not rateable. Ib. Neither is principal money unemployed. Per Buller J. and Grofe J. Lord Kenyon Ch. J. befitante, Afbhurft J. abfente. Ib.

9. Neither is the falary of the collector of the customs, or the half-pay of a captain of the navy, or the pay of the mafter of a trading veffel, or the falary of a clerk to a merchant. lb

10. A man's household goods and furniture are not rateable. Ib, 11. But the ftock in trade of a fhopkeeper is.

Profits rateable in respect of an Interest in the Soil.

1.KIN ING Charles granted liberty by patent to erect light-houses at Harwich, and towards the maintenance of them certain tolls and duties were made, payable by all ships paffing or coming into that harbour. Part of the duties arifing from thefe lighthouses are collected at H. the rest at different parts of the kingdom, and no other advantage but the tolls arife to the proprietor from the light-houfcs. The defendant did not refide in the parish

but

but occupied the light-houses by two of his men, who were kept to attend the lamps, fires, &c. The court were of opinion that the defendant ought not to have been rated. That they have not rated the house but the tolls, which are not locally fituated in the parish, and therefore are not rateable there. Rex v. Martin Rebore Efq. Mich. 12 G. 3. 1 Bott by Conft, 115. pl. 158.

2. A dock company convert land in a parish into part of a dock, they are rateable to the maintenance of the poor for fo much of the annual profits of the dock as the proportion of its extent in the parish bears to the whole. Rex v. The Dock Com=pany of Hull, 1 Term Rep. 219.

3. The defendant rented four acres of land, with buildings thereon, and a certain well of mineral water thereout arifing at the yearly fum of 100l. the lands and buildings being of the annual value of 20/. He is rated to the poor as for an eftate of 100%, and the rate is good; for by Lord Mansfield, this is not a rate upon the profits of the well, but upon four acres of land, the value of which arifes partly from the buildings and partly from the spring that produces the mineral water. Rex v. Miller, Cowp. 619.

4. A machine houfe, the principal annual value of which arifes from the ufe of the fteelyard in it for weighing waggons, &c. is affeffable to the poor. Rex v. St. Nicholas, Gloucester, Cald. 262. 1 Term Rep. 723. n.

5. So an houfe with a carding engine in it, described in the rate as an engine house, and both let and occupied together, though it does not appear whether the engine is fixed to the building, is confidered as an entire fubject, and rateable to the poor to the extent of their annual value. Rex v. Hogg, 1 Term Rep. 721. Cald. 266,

6. A barge way and toll gate purchased by the city of London, by virtue of 17 G. 3. c. 18. are rateable to the poor in the parish where they are fituated, as well for the tolls which become due there as the other profits, for they have an intereft in the foil, in respect of which they take the tolls. Rex v. The Mayor of Lon don, 4 Term Rep. 21.

7. A leffee of lead mines, whereon no rent is reserved other than a certain portion of the ore to be raised, is not rateable under the 43 Eliz., for the term used in it "coal mines" expressly excludes other mines, and there is a good ground for exempting them, as they are liable to much more hazard and expence. Governor and Company for smelting down Lead v. Richardson, 3 Burr. 1341. Black. 349.

8. The defendant was rated for his manor, confifting, as was ftated, of quit-rents, fines for renewal of copyholds, and other cafual fruit, and profits amounting in the whole to 130l. a-year. The court were of opinion that they were not rateable. Rex v. Vandewall, 2 Burr. 991. Black. 212.

9. Where a leffee under the crown of certain lead mines received the duties of lot and cope, which are paid by the adven

turers,

turers, without any rifk or expence to him in working the mines, he is rateable to. the poor. Rowls v. Gill & al. Cowp. 451. Res v. St. Agnes, S. P. 3 Term Rep. 480.

10. Trespass for taking the plaintiff's cattle on a distress for the poor rate. The question was, Whether the herbage and pannage of a forest were rateable. The caufe was tried twice, when the judges at nifi prius, Mr. Juftice Blackstone and Mr. Juftice Afbhurst, were feverally of opinion, that they were not rateable. But the court of King's Bench, on the authority of The Corporation of Wickham v. the Mayor, cited in 17 Vin. Abr. 425. from 3 Keb. 540, granted a new trial, that the point might be fettled on a special verdict; but it seems not to have come on again. Jones v. Maunfell, Dougl. 289.

11. In Lord Bute v. Grindall, Lord Mansfield Ch. J. was of opinion that the herbage and pannage of a park which were granted to the ranger were not rateable, not having yielded him any profit. 1 Term Rep. 358.

12. The tithes of fish are rateable, though the reft of the fish caught may not be fo; for the party receives a certain benefit arifing from the tithe of fish in the parish, and runs no risk. Rex Carlyon, 3 Term Rep. 385.

13. A fum of money made payable annually by the owners of land in lieu of tithes is liable to the poors' rate. Lowndes v. Home & al. 2 Bl. Rep. 1252.

14. So are payments in lieu of tithes fettled under a compromife between a parfon and a parish, and confirmed by act of parliament. Rann v. Picking, Cald. 196.

15. Vide Rex v. Toms, where a parochial affeffment, fettled by 19 G. 3. c. 60. for the vicar of St. Michael's in Coventry, was held not rateable. Dougl. 401.

16. The leffee of a private building covenanted by his leafe to use it always as a chapel where the fervice for the church of England fhould be used, to pay the clergymen and other officers belonging to it, and defray all other expences of its fupport and maintenance, he receiving all the emoluments arifing from pews or feats therein. This building is rateable to the poor. Robfon v. Hyde, Cald. 310.

17. The warden of the Fleet is affeffable to the poor's rate for the profits of his office. Rex v. John Eyles, Hil. 24 G. 3. 1 Batt by Con't, 160. pl. 175.

18. A. contracts with B. and others for certain-way-leaves over their lands, and the liberty of making waggon ways in the moft convenient direction towards a river for a term of years, paying a certain fum yearly. He obtains leave, but lays no waggon way in any of their lands, except a part in which he is tenant in common with B. He has alfo the ufe of a waggon way occupied by C., paying him so much per ton for the goods carried over it. He is not rateable to the poor for thefe way-leaves. For per. cur. it is only an easement, and if he were rated for his right of paffage it would be a double rate, and this is not like the cafe

of