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 3 1924 030 065 746 
 
 PRACTICAL HEMARKS 
 
 ON THE PEINCIPLE3 OF 
 
 EATING, 
 
 AS APPLIED TO THE PROPER AND UNIFORM ASSESSMENT OP RAILWAYS, 
 GASWORKS, WATERWORKS, MINES, CEMETERIES, ETC., ETC. 
 
 HENRY JAMES CASTLE, 
 
 SUBVETOB, 
 Associate Institute of Civil Engineers, 5, Chancery Lane, London, 
 
 ASSISTED BY 
 
 EDWARD JAMES CASTLE, 
 
 BABEISXBB-AT-LAW, 
 Associate Institute of Civil Engineers, late Lieut, Royal Engineers, 
 
 LONDON: W. MAXWELL & SON, FLEET STREET; 
 SHAW & SONS, FETTER LANE. 
 
 1869. 
 
A-^^^77 
 
 LOMDCN: tBINTKU BY SHAW AND SONS, YHTTT.R I.ANE. 
 
PEEPACE TO THE SECOND EDITION. 
 
 I DO not know that I can say much more than 
 I have already said in the Preface to the first 
 edition. I can but add, that the ignorance on 
 the subject still, to a great extent, continues, and 
 that though many parishes have profited by the 
 publication of the first edition, there remain many 
 more, who might materially profit by the publi- 
 cation of a second. The principle of assessing 
 Railways and other Public Companies may be 
 better understood now than they were, yet they 
 are not understood so well as in the interests of 
 other ratepayers, they ought to be. It is to my 
 interest and theirs, that the subject should be tho- 
 roughly understood everywhere. In 1863, the 
 date of the first edition, there were many points 
 left undecided, which have been cleared up since. 
 These points I have in this edition fully gone into, 
 and have quoted and given extracts from the 
 cases determining them. I have endeavoured to 
 bring the whole subject up to this time, and I 
 have in most cases given the words of the judg- 
 ment — in all cases the words of the head notes ; 
 
IV PUEPACE. 
 
 but whenever these head notes did not in my 
 opinion correctly epitomize the case and judg- 
 ment, I have not scrupled to give my own indi- 
 vidual construction of the judgment. Law and 
 fact are so mixed up together in matters of scien- 
 tific values, that it requires the mind of a valuer 
 as much as that of a lawyer, thoroughly to under- 
 stand th«i points at issue, and to comprehend 
 and correctly apply the principle laid down by 
 the court for the guidance of the surveyor in 
 reference thereto. 
 
 As some uncertainty seems to prevail as ta 
 the correct principle upon which Coal Mines 
 should be assessed, I have given a Chapter upon 
 Mines, Brick Fields, Cemeteries, and that class 
 of property generally, where the corpus or sub- 
 ject matter of the rate is in time exhausted, and 
 have perhaps, in consequence, gone more fully 
 into that one subject than I should otherwise 
 have done. 
 
 H. J. C. 
 
 P.S. In making extracts from the various cases 
 referred to in this work, I have to thank my son, 
 of the Inner Temple, for the able assistance he 
 has rendered me. 
 
PREEACE TO THE FIEST EDITION. 
 
 The only apology I can make for bringing this 
 little Work before the public is, to plead that it 
 •is required. The ignorance that prevails in most 
 parts of the country districts of England and 
 Wales is really lamentable. " The Railway is 
 " merely, it is frequently said, the abstraction of 
 '" a certain number of acres from the Parish, which 
 *' ought certainly to be rated to an equal amount 
 *' with the land adjoining ; and the station and 
 "" buildings are merely so many cube feet of brick 
 •" work, which ought to be cubed up and priced, 
 •" but all the appurtenances and conveniences 
 *' attached thereto have no rateable value at all." 
 These and similar mistaken ideas upon the sub- 
 ject are s.till, I am sorry to say, to be found every- 
 where. 
 
 In giving this Pamphlet therefore to the 
 PubKo, and furnishing them with some idea of 
 the principle on which the rateable value of Public 
 Companies ought to be ascertained, I feel that I 
 shall be doing the Public a service, and shall be 
 assisting the Legislature in the object they had 
 
Vi PREFACE. 
 
 in view ia passing the Union Assessment Com- 
 mittee Act — that of obtaining a fair and uniform 
 assessment of all properties that are rateable. 
 
 Such an anomaly as the same railway — 
 which passes through several parishes of the same 
 union, without a station among them to vary the 
 traffic— being rated in one parish at £200 per 
 raiJe, in another at £600, and in a third, perhaps, 
 at £50, can no longer exist, as the practice which 
 engendered it, of employing a local farm valuer 
 to value the E-ailway and other public works, — 
 one who, in many cases, arranged "with the Com- 
 pany, so as not to expose his own ignorance, 
 what the valuation should be, before he sent it in, 
 — ^will, of course, be no longer necessary. The 
 larger funds of the Union being available for that 
 purpose will command, and the larger interests 
 at stake of many parishes — instead of one, as it 
 used to be, which had to fight its battles all 
 alone — will justify, the employment of competent 
 persons for the future, of men who have devoted 
 their time and talents specially to the assessment 
 of Public Companies. I am glad to see that the 
 propriety of dividing the work, and enga-ging 
 persons specially to value the Public Companies, 
 has occurred already to several unions, as in this 
 way only can they secure the services of parties 
 
PREFACE. VU 
 
 who are fully competent for the work they under- 
 take. 
 
 These men, when called in, will take care to 
 secure a fair and uniform rating of all the Puhlic 
 Companies throughout the Union, This uniform 
 rating throughout the Union, when once secured, 
 will he followed eventually hy an uniform rating 
 throughout the county ; for this reason, that as 
 Union boundaries furnish no element of difiference 
 in Railway receipts, if part of the same Railway 
 is in one Union and the adjoining part in another, 
 having no stations upon one or the other to dis- 
 turb the traffic, the rateable value of the Railway 
 will be of necessity the same per mile in each; 
 for, should this not be so, and should there be 
 any considerable difference between them, the 
 discrepancy would at once present itself to the 
 County Rate Committee, who would have all the 
 Unions before them. In this way, by degrees, 
 the assessment of the Public Companies will 
 become uniform throughout the County, and by 
 means of the Railways, eventually throughout 
 England ; county boundaries no more furnishing 
 any element of difference in traffic receipts than 
 Union boundaries. One or two cases of the 
 anomaly of Quarter Sessions of adjacent Counties 
 deciding in one county that the same Railway 
 
Vlll PREFACE. 
 
 is assessable per mile at, say, £600, and in the 
 adjoining County assessable at £200 per mile, 
 when they should, of necessity, be the same, 
 would be sufficient to arouse the attention of all 
 parties to the subject, and to lead to the adoption 
 gradually of an uniform County Valuation. 
 
 H. J. C. 
 
 June, 1863. 
 
TABLE OF CASES. 
 
 PAGE 
 
 Great Eastern Railway Company ». The Parish of 
 
 Haughley --------69 
 
 London and North-Western Railway v. Overseers of 
 
 Cannock - - 64, 71 
 
 Mile End Old Town Case 116 
 
 The Chelsea Waterworks v. The Overseers of Putney - 117 
 
 Reg. V. Attwood and Others . - - . 124, 148 
 
 Rex V. Brettel 158, 159 
 
 Reg. »;. Brighton Railway 41, 56 
 
 V. Cambridge Gas Company . . - - 115 
 
 V. Eastern Counties ------ 65 
 
 . V. Ernest - - 124, 130 
 
 V. Great Junction Railway Company - 29, 36, 38, 41 
 
 V. Great Western Railway Company - 22, 36, 39, 
 
 60, 102 
 
 • V. Great Western Railway Company (No. 2) - 47 
 
 V. Inhabitants of Lee - - - - 121, 158 
 
 Rex V, Inhabitants of Sedgeley ----- 158 
 
 Reg. V. Lord Granville - . - - 124, 148, 151 
 
 V. Lord Sherrard - - - - - 51, 54 
 
 V. Midland Railway - - - - - 41, 56 
 
 V. Newmarket Railway - - - - 48 
 
 j;. New River Company ----- 113 
 
 V. North London Railway - - - 50, 62, 98 
 
 . V. North Staffordshire Railway - 40, 61, 59, 102, 106 
 
X TABLE OF CASES. 
 
 PAGE 
 
 Reg. V, Overseers of Hetton - - - - 51 
 
 V. Overseers of Halsetad - - - - 60, 102 
 
 V. Sheffield United Gas Company - - - 119 
 
 V. Southampton Dock ----- 59, 102 
 
 V, South-Eastern Railway - - - - 41 
 
 V. South-Eastern Railway (Dorking case) - 23, 48, 70 
 
 V. South-Western Railway - - 29, 36, 37, 41 
 
 V. St. Giles, Camberwell - . - - 124, 149 
 
 V. Mary's Abbotts, Kensington - - - 124, 141 
 
 V. Westbrook 124, 127, 128 
 
 V. West Middlesex 114, 118 
 
TABLE OE CONTENTS. 
 
 PAGE 
 
 Preface to 2nd Edition - - - - - iii 
 
 „ 1st Edition - - - - v 
 
 Table of Cases - ix 
 
 PRELIMINARY CHAPTER. 
 
 Extracts from Union Assessment Act of 1862 1 — 9 
 
 Extracts from Union Assessment Act of 1864 - 10, 11 
 
 Extracts from 6 & 7 Will. 4, c. 96 - - - 12, 13 
 
 CHAPTER I. 
 
 Remarks upon clause 15 of Union Assessment Committee 
 
 Act of 1862, and its reference to 6 & 7 Will. 4, c. 96 14 
 
 CHAPTER II. 
 
 SECTION 1. 
 
 Gross rental where tenant is not his own landlord — defini- 
 tion of net rental — nature of weekly tenements — 
 deductions for repairs, how to be arrived at — power of 
 appeal — rent paid, and net annual value — examples — 
 railways — bouses — Lord Denman's opinion — case of 
 lease ---. 19 
 
TABLE OF CONTENTS. 
 
 SECTION y. 
 
 PAGE 
 
 Where the tenant is his own landlord — rent, how ascer- 
 tained in cases of exceptional nature — as in the case 
 of gas, railway, and other companies — stock-in-trade 
 and profits in trade not rateable — gross receipts com- 
 prehend working' expenses, tenant's profits, and 
 landlord's rent — tenant's working expenses ; in the 
 case of railways, of water and gasworks — subdivision 
 of profits between landlord and tenant, tenant entitled 
 to percentage on capital employed and allowance for 
 depreciation — net receipts, less tenant's allowances, 
 constitute gross rental, which includes landlord's 
 repairs and insurance — example in case of railways, 
 gas, and waterworks - . - - - 23 
 
 CHAPTER III. 
 
 SECTION 1. 
 
 Assessment of railways as one whole, or where receipts are 
 uniform — classification of the deductions to be made 
 from gross receipts — classification of deductions and 
 allowances fairly claimable by the tenant - - 27 
 
 SECTION 2. 
 
 Net rateable value obtained by deducting statutables from 
 gross rental — how divided between line and stations — 
 gross receipts, not tolls, to be the basis of culculation. 
 
TABLE OF CONTENTS. XIU 
 
 PAGE 
 
 Iteg V. London and South Western Railway Com- 
 pany -29 
 
 Question of disbursements — of. tenant's allowances - 30, 31 
 
 Comparative estimate ------ 32, 33 
 
 Brief history of railway rating — former ignorance on the 
 
 subject ---35 
 
 Receipts, not tolls, the basis of calculation, or the paro- 
 chial system preferred to the mileage. R. v. South 
 Western Railway Company - - - - 37 
 
 This decision confirmed with respect to gross receipts. R. 
 
 V. Grand Junction Railway Company - - - 38 
 
 Claim to deduct for income tax and loss on branches, not 
 
 allowed. R, v. Great Western Railway Company - 39 
 
 Parochial principle finally adopted. R. v. London, Brigh- 
 ton, and South Coast Railway Company. R. v. South 
 Eastern Railway Company; and R. v. Midland 
 Railmay Company - - - - 41 
 
 Easements declared rateable in all cases. R. v. London, 
 
 Brighton, and South Coast Railway Company - 42 
 
 Eates based on past events must be modified when neces- 
 sary. R. V. London, Brighton, and South Coast Rail- 
 way Company ...---. 44 
 
 Proper method of applying parochial principle between 
 line and branches, (per Lord Campbell, C. J.) R. v. 
 Great Western Railway Company - - - 44 
 
 Where net profits are supplemented by a second company 
 — money so paid not to be introduced into calculations 
 of rateable value. R. v. Newmarket Railway Com- 
 pany .-.-...-47 
 
 A. perpetual annuity agreed to be paid for the use of a 
 railway is not necessarily the measure of the net 
 rateable value. Dorhing Case • - - - 48 
 
 Occupiers of line subject to an easementfor which rentis paid 
 
 are rateable for such rent. R. v. Overseers of Fletton 51 
 
XIV TABLE OP CONTENTS. 
 
 PAGE 
 
 Above decision confirmed. H. v. Lord Sherrard - - 54 
 
 Occupiers to be rated for easements, though created by 
 
 statute. B,. v. Midland Railway Company - - 56 
 
 Landlord's and tenant's fixtures — allowance for tenant's 
 fixtures to be based on their present value. R. v. 
 North Staffordshire Railway Company - - - 59 
 
 Doubts raised in Halstead Case - - - - - 60 
 
 Division of through fares, where companies run in con- 
 junction. North London Railway Company v. 
 St. Pancras ....... Q2 
 
 Contributive value. London and North Western Rail- 
 may Company v. Overseers of Cannock - - - 64 
 
 Terminal charges are part of the general earnings. R. v. 
 
 Eastern Counties -------65 
 
 Contributive value. Haughley - . - . 69 — 82 
 
 CHAPTER IV. 
 
 Deductions and their principles of allocation to a parish — 
 railway company both landlord and tenant — deduc- 
 tions to be distributed — landlord's repairs not charge- 
 able to the tenant — renewal included in maintenance 
 — railways never renewed as a whole - - 83 
 
 SECTION 1. 
 
 Maintenance of way, works and stations - - - 86 
 
 SECTION 2. 
 
 Locomotive expenses — repairs and renewals - - - 86 
 
TABLE OF CO^TENT^. 
 
 XV 
 
 SECTION 3. 
 
 Carriage and waggon repairs and renewals 
 
 PAGE 
 
 - 88 
 
 SECTION 4. 
 
 Traffic and miscellaneous expenses 
 
 89 
 
 Government duty 
 
 SECTION 5. 
 
 91 
 
 Tithe rent charge 
 
 SECTION 6. 
 
 91 
 
 Rates and taxes 
 
 SECTION 7. 
 
 92 
 
 SECTION 8. 
 
 Tenant's profits — Mr. Pashley's opinion of what is a fair 
 percentage — opinion of Mr. Ellis — interest included 
 in tenant's profits ...... 92 
 
 SECTION 9. 
 
 Tenant's capital — difference of opinion as to 
 
 - 101 
 
TABLE OF CONTENTS. 
 
 SECTION 10. 
 
 PAGE 
 
 Maintenance of way - ^05 
 
 SECTION 11. 
 
 Station assessment contributive fund. R. v. North Staf- 
 fordshire Railway Company - - - - - 106 
 
 CHAPTER V. 
 
 Gas works, assessment of, as a whole— Ex. the Cambridge 
 
 Gasworks ....... 108 
 
 CHAPTER VI. 
 
 Waterworks, assessment of, as a whole — Ex. the West 
 
 Middlesex Waterworks - Ill 
 
 CHAPTER VII. 
 
 Gas and water companies, subdivision of, among parishes — 
 Arawell New River case — Mile End Town case. Meg. 
 V. West Middlesex. R. v. Sheffield Gas Company. 
 Jt. V. The Inhabitants oj" Lee, ^c. - - - - 113 
 
 CHAPTER VIII. 
 
 Brickfields — cemetories— coal mines — quarries - - 124 
 
TABLE OF CONTENTS. XVU 
 
 SECTION L 
 
 PAGE 
 
 Brickfields 125 
 
 R. V. Westbrook - - - . - - - 197 
 
 R. V. Everest . . . . . 130 
 
 Remarks on the above cases - - - - 137 
 
 SECTION 2. 
 
 Cemeteries. H. v. Ivliabitants of St. Mary Abbot's, 
 
 Kensington ------ Ml 
 
 R. V. hihaiitantsof St. Oilers, Camber-well - - 143 
 
 SECTION 3. 
 
 Coal mines - - - - ... 145 
 
 R. V. Allwood and Others - . . . 148 
 
 R. V. Iiord Granville - - - 151 
 
 Ex. Assessment of a coal mine - - - - 155 
 
 SECTION 4. 
 
 Quarries - 158 
 
 M. V. Sedgeley „ . - . - 168 
 
 R. V. Brettel 159 
 
 APPENDIX. 
 
 Weekly property, conversion of ■■ - - . - 162 
 
 Railway expenses, allocation of - - - 163 
 
PRELIMINARY CHAPTER. 
 
 EXTRACTS. 
 
 UNION ASSESSMENT COMMITTEE ACT, 1862. 
 
 Clauses— 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 
 32, 33, 34, and 39. 
 
 15. The gross estimated rental for the purpose of the schedule Definition 
 to this Act shall be the rent at which the hereditament might estimated 
 reasonably be expected to let from year to year, free of all usual rental, 
 tenants' rates and taxes, and tithe commutation rentcharge, 
 
 if any : 
 
 Provided that nothing herein contained shall repeal or inter- 
 fere with the provisions contained in the 1st section of the said 
 Act {6 &7 William the Fourth, chapter 96), defining the nei 
 annual value of the hereditaments to be rated. 
 
 16. The committee by their order may from time to time Committee 
 enlarge the time within which the first valuation lists under this the^time^fOT 
 
 Act shall be made by the overseers of all or any of the parishes mailing valua- 
 , . .„ 1 , ■ ,. t'on lists, and 
 
 in the union, and, for ensunng a uniform and correct valuation of may give 
 
 every parish in the union, may direct that any existing valuation gg^geining 
 
 of the rateable hereditaments in any parish be revised, in whole valuations 
 
 or in part, or a new valuation of such hereditaments be made by i^^is, and may 
 
 fhp nvpr<?pprs appoint per- 
 
 tne overseers. ^^jj^ ^^ ^^,^3 
 
 Or the committee may, with the consent of the board of the same, 
 guardians of the union, after notice shall have been sent to every 
 guardian thereof, in any case appoint some person for either of 
 the purposes aforesaid, and may direct such person to make and 
 sign the valuation list instead of the overseers, and every valua-' 
 
 B 
 
tion list so made and signed shall be delivered by such person to 
 the overseers of the parish to which the same relates. 
 Valuation lists 17. The valuation list for each parish, made and signed by 
 Bite^d forln- *^^ overseers, or delivered to them, as hereinbefore provided, 
 Bpection, and gjjg^u ^,g deposited by the overseers in the place in such parish in 
 transmitted to which rate books are deposited or kept, and a copy of such 
 the committee. ^^j^^^.^jj list shall be forthwith delivered to the board of 
 guardians. 
 
 And the overseers shall give public notice of the deposit of 
 such list on the Sunday next following- the deposit of such list, 
 and such notice shall be given in the same manner, and all 
 persons assessed or liable to be assessed to the relief of the poor 
 of such parish shall have the like right of inspecting, and of 
 demanding and taking copies of and extracts from such list, as 
 in the case of a poor rate allowed by the justices. 
 
 And the overseers shall, at the expiration of fourteen days 
 from the time of the notice given of the deposit of such list, 
 transmit the same to the committee. 
 
 And any overseer or other ratepayer within the union shall 
 have the right of inspecting and taking copies of and extracts 
 from any of the lists so transmitted. 
 Objections to 18. Any overseer or overseers of any parish in any union who 
 shall have reason to think that such parish is aggrieved by the 
 valuation list of any parish within such union, or any person 
 who may feel himself aggrieved by any valuation list on the 
 ground of unfairness or incorrectness in the valuation of any 
 hereditaments included therein, or on the ground of the omis- 
 sion of any rateable hereditament from such list, may at any 
 time after the deposit as aforesaid of such list, and before the 
 expiration of twenty-eight days after the notice of the deposit as 
 aforesaid, give to the committee and to the overseers a notice 
 in writing of his objection, specifying the grounds thereof; 
 
 And where the ground of any objection shall be unfairness or 
 incorrectness in the valuation of any hereditament in respect of 
 
which any person, other than the person objecting, is liable to 
 be rated, or the omission of such hereditament, also g-ive notice 
 in writing of such objection, and of the ground thereof, to such 
 other person. 
 
 19. The committee shall hold such meetings as they may Committee to 
 think necessary for hearing objections to the valuation lists, and tgi^g^y^ '"^^ 
 shall, twenty-eight days at least before holding every meeting for objections, 
 hearing objections to valuation lists, other than meetings by 
 adjournment, cause notice of such meeting to be given to the 
 overseers of the several parishes to which such lists relate, and 
 such overseers shall, on the Sunday next following the receipt 
 of such notice, publish the same in the manner in which notice 
 of a rate allowed by justices is by law required to be given. 
 
 And the committee may at any such meeting hear and deter- 
 mine such objections, or may from time to time adjourn any 
 such meeting, and adjourn or postpone the hearing or further 
 hearing and determination of any such objections, and may, 
 where they think fit, direct notice of any such objections to be 
 given by the overseers or by the persons objecting to third par- 
 ties before the further hearing thereof 
 
 But the committee shall not be required to hold a meeting for 
 hearing objections to the valuation list of any parish, unless such 
 notice in writing as hereinbefore mentioned of some objection or 
 objections thereto have been given to the committee. 
 
 And where a meeting is holden for hearing objections to the 
 valuation list of any parish, the committee shall not hear any 
 objection to such valuation list unless such notice as aforesaid 
 of such objection have been given to the committee and to the 
 overseers : 
 
 And where the ground of such objection is unfairness or in- 
 correctness in the valuation of any hereditament of any other 
 person than the person objecting, or the omission of such here- 
 ditament, also to such other person by the person objecting : 
 
 Except where the overseers, by themselves or any other person 
 
 b2 
 
Board may 
 direct further 
 valuation and 
 correct valua- 
 tion lists, and 
 when cor- 
 rected to 
 approve the 
 same. 
 
 Valuation list 
 when altered 
 to be depo- 
 sited, &c. 
 
 on their behalf, and in the case aforesaid such other person as 
 aforesaid, by himself or any other person on his behalf, consent 
 to the hearing of such objection, and in such case the committee 
 may, if they see fit, hear the same. 
 
 And where the committee see fit to hear the same, they shall 
 act in relation thereto in like manner as if notice of such objec- 
 tion had been duly given. 
 
 SO. The committee may, whether any objection be or be not 
 made to any such valuation list, and either before or after any 
 meeting for hearing objections, make such alterations in the 
 valuation of any hereditaments included in any valuation list, 
 and insert therein any rateable hereditament omitted therefrom, 
 and make such corrections in names, descriptions, and particulars 
 in any valuation list, and upon such information, as to them 
 may seem sufficient. 
 
 And may, with the consent of the guardians as aforesaid, 
 appoint or employ a person to survey and value the rateable 
 hereditaments comprised in any such valuation list, or any of 
 them, or omitted therefrom, or may take such other means as 
 they may think necessary for ascertaining the correctness 
 thereof; 
 
 And when the committee have heard and determined all such 
 objections as aforesaid, and have made such alterations, inser- 
 tions, and corrections in any valuation list as to them may seem 
 proper, they shall approve the same under the hands of three 
 members of the committee present at the meeting at which the 
 same is approved, with the date of such approval. 
 
 21. Where the committee make any alteration in the valuation 
 of any hereditaments included in, or insert therein any rateable 
 hereditament omitted from any such valuation list, they shall 
 cause such valuation list, with such alteration or insertion, to be 
 deposited for inspection in manner hereinbefore provided con- 
 cerning the valuation list made by or delivered to the over- 
 seers. 
 
And shall cause the like notice to be given of such deposit as 
 is required in the case of a valuation list so made or delivered as 
 aforesaid, and shall appoint a day, not less than seven days, nor 
 more than Jburteen days, from the re-deposit of such valuation 
 list, for the hearing of any objections to the valuation list as so 
 altered ; 
 
 And when the committee have heard and determined any such 
 objections, or have made such further alterations, insertions, and 
 corrections in such valuation list, they shall approve the same in 
 manner hereinbefore provided. 
 
 22. In case any ratepayer shall under the existing law appeal if on appeal 
 to the special sessions or quarter sessions, against any rate made amended the 
 
 for the relief of the poor in any parish, and the result of such valuation list 
 , , . to be altered. 
 
 appeal shall be to amend the rate appealed against, the assess- 
 ment committee shall alter the valuation list of the said parish in 
 conformity with the decision so made. 
 
 23. Every valuation list, when approved by the committee, Custody, &c., 
 shall be delivered to the overseers of the parish to which the same ust after ap- 
 relates, and shall be preserved at the like place and in the like P''°^*l' 
 custody, and be subject to the like resort thereto, and be delivered 
 
 over from time to time in like manner, as the books are, wherein 
 rates and assessments for the relief of the poor for the same 
 parish are entered, and shall be produced by the overseers before 
 the justices, upon application for the allowance of rates, and at 
 the special or general or quarter sessions when any appeal is to 
 be heard, and also at such times and places as the committee may 
 from time to time direct. 
 
 24. Every valuation list approved by the committee, and de- What shall ho 
 livered to the overseers of the parish to which the same relates, tion"usts^L"^' 
 shall, with and subject to the alterations and additions for the *<"''='^- 
 
 time being made therein or thereto by any supplemental valuation 
 lists so approved and delivered, be the valuation list in force in 
 such parish, except in the case of any parish, as is hereinafter 
 
Operseers to 
 prepare sup- 
 plemental 
 valuation lists 
 in ease of 
 additions to or 
 alterations in 
 the rateable 
 property of 
 the parish. 
 
 Committee 
 may from 
 time to time 
 direct new 
 valuation, and 
 new or sup- 
 pleraental 
 valuation lists. 
 
 referred to, in which the poor rate, or assessment for the poor 
 rate, is made under the authority of a local Act, until a new- 
 valuation list in substitution for the same be approved and 
 delivered in like manner. 
 
 25. When and so often as any property not included in the 
 valuation list in force in any parish becomes rateable, or where, 
 by reason of any alteration in the occupation of any property in- 
 cluded in such list, such property becomes liable to be rated in 
 parts not mentioned in such lists as rateable hereditaments and 
 separately valued therein, and when and so often as it shall appear 
 to the overseers that any rateable property included in such list 
 has been increased or reduced in value since the valuation thereof^ 
 whether by building, destruction of building, or other alteration 
 in the condition thereof or otherwise, the overseers of the parish 
 in each of the cases aforesaid sliall, as soon as conveniently may 
 be, make a supplemental valuation list showing the annual rate- 
 able value according to the judgment of the overseers of the pro- 
 perty so become rateable, or of the parts so become liable to be 
 rated separately, or of the property so increased or reduced in 
 value, as the case may be. 
 
 26. The committee by their order may from time to time, 
 ■where they see fit, upon the application of any person aggrieved 
 by the valuation list in force in any parish, or where they 
 themselves think the same expedient, direct a new valuation of 
 all or any of the rateable hereditaments in such parish, and a 
 new valuation list in substitution for such valuation list as 
 aforesaid, or a supplemental list in substitution for any part 
 thereof or in addition tliereto, to be made by the overseers, or 
 the committee may, with such consent as aforesaid, appoint a 
 person for such purposes. 
 
 And the committee may, in directing stich new valuation, and 
 the making of such new or supplemental valuation list, give and 
 make all such or the like directions and provisions in relation 
 thereto as they are authorized under this Act to give and make 
 
in relation to the valuations and valuation lists first directed and 
 
 authorized to be made under the Act. 
 
 32. If the overseer or overseers of any parish in any union Appeal against 
 , ,, , 1.11 1 . , . 1 1 valuatioD lists, 
 
 suall nave reason to think that such parish is aggrieved by 
 
 the valuation list of any parish within ^uch union, whether it 
 
 be— 
 
 On the ground that the rateable hereditaments comprised in 
 the valuation list of such parish are valued at sums beyond the 
 annual rateable value thereof, 
 
 Or on the ground that the rateable hereditaments comprised 
 in the valuation list of some other parish in such union are valued 
 at sums less than the annual rateable value thereof, 
 
 It shall be lawful for such overseer or overseers, with the 
 consent of a vestry summoned for the purpose of considering the 
 expediency of giving such consent, to appeal to the quarter 
 sessions for the county or borough in which the greatest number 
 of parishes belonging to the union is situate, or, in case the 
 number of parishes in any two or more such jurisdictions is 
 equal, to the quarter sessions for the county or borough having 
 jurisdiction over the parish in which the workhouse of the union 
 is situate, at the sessions to be holden after the expiration of a 
 month after the allowance of and deposit of such valuation list as 
 aforesaid, against such valuation list of the parish which shall 
 appear to be over-valued or under-valued ; 
 
 And if in any case any such overseer or overseers appeal 
 against the valuation list ofany other parish on the ground that 
 the rateable hereditaments in such list are valued at less than 
 the annual rateable value thereof, such overseer or overseers 
 shall give fourteen clear days' notice in writing previous to the 
 first day of the said quarter sessions at which the appeal is to be 
 made, of the intention to appeal, and the grounds thereof^ to the 
 overseers of the poor of such parish, and to the guardians of the 
 union comprising su^ja. parish ; 
 
 And if any overseer or overseers of any parish appeal against 
 
8 
 
 the valuation list of such parish on the ground that the rateable 
 hereditaments in such list are valued beyond the annual rateable 
 value thereof, such overseer or overseers shall givejburteen days 
 notice in writing, previous to the quarter sessions at which the 
 appeal is to be made, of the intention to appeal, and the grounds 
 thereof, to the g-uardians of the union in which such parish is 
 situate ; 
 
 The said court shall be empowered to hear and determine such 
 appeal, and either confirm such valuation list, or correct such 
 irregularities or inaccuracies as shall be proved to exist therein, 
 as to them may appear fair and just ; 
 
 But no such valuation list shall upon such appeal be quashed 
 
 or destroyed in regard to any other parish, unless the court deem 
 
 it necessary to proceed to the making of an entire new valuation 
 
 list as hereinafter provided, 
 
 Hearing and qq J( gj^^ji |jg layyfui for the court of quarter sessions, upon 
 
 determjniag; '^ ' r 
 
 appeals. ' any such appeal, instead of hearing the said appeal, to adjourn 
 the same, and to order, upon the application of the appellant or 
 respondent in such appeal, a survey or valuation of any of the 
 parishes in respect of which such appeal shall be made, and to 
 fix the next or some subsequent sessions for receiving such 
 survey or valuation, and for hearing and determining such 
 
 And such court shall also thereupon appoint a proper person 
 to make such survey or valuation, and the person so appointed 
 shall have power, with or without assistants, to enter upon and 
 survey, measure, and value all the hereditaments liable to be 
 assessed to the rates for the relief of the poor within the parish 
 or parishes mentioned in such order 
 
 And such survey and valuation shall be reported to the quarter 
 sessions on adjournment lixeil as aforesaid for receiving the same, 
 and the court then and there assembled shall hear and determine 
 the said appeal in the manner hereinbefore set forth. 
 
34. The charges and expenses of any such survey and valua- '^?*''* "f }"»•"- 
 tion so oi'dered shall be deemed costs in such appeal, and abide appeal, 
 the event thereof. 
 
 And the court before which any such appeal is heard and 
 determined, may order the costs in and about the appeal to be 
 paid by either the appellant or respondent party, as they in their 
 discretion may think fit. 
 
 But where any appeal is made, on the ground that the rateable 
 hereditaments of any parish comprised in the valuation list of 
 such parish are valued beyond the annual rateable value thereof, 
 if the court on such appeal determine in favour of the appellants, 
 such court shall ascertain the costs and charges incurred by such 
 appellants in and about such appeal, and shall order the board of 
 guardians of the union in which such parish is situate, to pay the 
 same to the appellants out of the money raised for the common 
 fund for the several parishes in such union. 
 
 39. The expenses of making any valuation and valuation list Expenses of 
 
 11 II- valuation, &c. 
 
 or any parish, or any oi such expenses, whether such valuation to be paid out 
 
 and valuation list respectively be made by the overseers, or by °' '"""' ^^^^^' 
 
 any person appointed by the committee, shall be charged upon 
 
 the poor rates of such parish, if the valuation made by direction 
 
 of the committee shall exceed by one-sixth the amount of the 
 
 valuation delivered to them by the overseers, and upon the 
 
 common fund of the said union, if the valuation so made as last 
 
 mentioned shall not exceed by one-sixth the valuation so delivered 
 
 as aforesaid. 
 
10 
 
 UNION ASSESSMENT COMMITTEE AMENDMENT 
 ACT, 1864. 
 
 Clauses — 1, 2, 3, 4, and 5. 
 
 Notice of 
 appeal against 
 poor rate to 
 be given to 
 tlie assessment 
 committee of 
 union. 
 
 Committee 
 may, with 
 consent of 
 guardians, be 
 co-respon- 
 dents. 
 
 1. Before any appeal shall be heard by any special or quarter 
 sessions against a poor rate mnde for any parish contained in 
 any union to which the Union Assessment Committee Act, 
 1862, applies, the appellant shall give twenty-one days' notice 
 in writing previous to the special or quarter sessions to which 
 such appeal is to be made of the intention to appeal, and the 
 grounds thereof, to the assessment committee of such union : 
 Provided, that after the first day of August next no person 
 shall be empowered to appeal to any sessions against a poor rate 
 made in conformity with the valuation list approved of by such 
 committee, unless he shall have given to such committee notice 
 of objection against the said list, and shall have failed to obtain 
 such relief in the matter as he deems just ; and which objection, 
 after notice given at any time in the manner prescribed by the 
 said Act with respect to objections, the committee shall hear, 
 with full power to call for and amend such list, although the 
 same has been approved of, and no subsequent list has been 
 transmitted to them, and if they amend the same shall give 
 notice of such amendment to the overseers, who shall thereupon 
 alter their then current rate accordingly. 
 
 2. The assessment committee of such union may, with the con- 
 sent of the guardians of such union, after notice shall have been 
 sent to every guardian, appear as respondents to such appeal, 
 but in the name of the guardians of such union, in like manner, 
 and vfith the same incidents, and subject to the same liabilities, 
 and entitled to the same remedies and rights as in the case of 
 persons other than the overseers to whom notice of appeal may 
 be given. 
 
11 
 
 3. The costs which the committee may incur in consequence Provisions as 
 of becoming respondents to such appeal, or of having- received committee 
 notice thereof, shall, if not recovered from the appellants, as *"" ^PP^'^'^- 
 well as any costs the committee may be ordered to pay to the 
 appellants, be paid by the guardians and charged to the com- 
 mon fund of the union, unless the court before whom such 
 
 appeal is heard shall direct that such costs, or any part thereof, 
 shall be charged to the parish, the rate of which is appealed 
 against. 
 
 4. Where a valuer is appointed by the assessment committee Valuation 
 he shall make his valuation in writing, showing the particulars j° „°.j™no.* 
 of the several hereditaments comprised therein, and the amounts 
 
 at which he has valued the same respectively, and shall sign 
 such valuation, which shall be open to inspection in like man- 
 ner and with the same incidents with respect to the taking of 
 copies or extracts as the minute books of the committee. 
 
 5. Within fourteen days after the transmission to the assess- Notice of 
 ment committee of any valuation or supplemental valuation list ^g\g given 
 the committee shall give notice to every railway, telegraph, canal, *° certain 
 gas, and water company named in such list as the occupier of 
 
 any property included therein, and not having any office or place 
 of business in the parish to which such list relates, of the sum 
 or sums set down as the rateable value of the property purport- 
 ing to be occupied by such company or companies, and such 
 notice may be served by being transmitted through the post to 
 the principal office of the company, or one of their principal 
 offices when there shall be more than one. 
 
12 
 
 EXTRACTS FROM THE STATUTE 
 6 & 7 WILL. 4, c. 96. 
 
 All rates to be No rate for the relief of the poor in England and Wales shall 
 net annual ^^ allowed by any justices, or be of any force, which shall not be 
 value of the made upon an estimate of the net annual value of the several here- 
 
 propei'ty. 
 
 ditaments 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 usual tenants' rates and taxes, and tithe commutation 
 rentcharge, if any, and deducting therefrom the probable average 
 annual cost of the repairs, insurance, and other expenses, if any, 
 necessary to maintain them in a state to command such rent : 
 
 Provided always, that nothing herein contained shall be con- 
 strued to alter or affect the principles or diiferent relative liabili- 
 ties (if any) according to which diiferent kinds of hereditaments 
 are now by law rateable. 
 Justices acting 6. And be it enacted, that the justices acting in and for every 
 in petty ses- petty sessions' division shall four times at least in every year hold 
 four special a special sessions for hearing appeals against the rates of the 
 
 sessions in the . . . '.i • ,i • ,• i< • • i i n 
 
 year to hear several parishes withm their respective divisions, and shall cause 
 appeals. public notice of the time and place when and where such special 
 
 sessions will be holden to be aflSxed to or near to the door of the 
 parish church of the said parishes, twenty-eight days at the least 
 before the holding of the same ; and such special sessions shall 
 and may he adjourned from tim3 to time by the justices there 
 present, as they may think fit ; 
 
 And at such special or adjourned sessions the justices there 
 ])resent shall hear and determine all objections to any such rate 
 on the ground of inequality, unfairness, or incorrectness in the 
 valuation of any hereditaments included therein, which decision 
 shall be binding and conclusive on the parties, unless the person 
 or persons impugning suth decision shall within fourteen days 
 after the same shall have been made cause notice to be given in 
 writing of his, her, or their intention of nppealing against such 
 
1 " 
 
 decision, and of the matter or cause of such appeal, to the person 
 or persons in whose favour such decision shall have been made, 
 and within five days after giving such notice shall enter into a 
 recognizance before some justice of the peace, with sufficient 
 securities conditioned to try such appeal at the then next general 
 sessions or quarter sessions of the peace which shall first happen 
 and to abide the order of and pay such costs as shall be awarded by 
 the justices at such quarter sessions, or any adjournme,nt thereof: 
 
 And such justices, upon hearing and finally determining such 
 matter of appeal, shall and may, according to their discretion, 
 award such costs to the party or parties appealing or appealed 
 against as they shall think proper, and their determination in or 
 concerning the premises shall be conclusive and binding on all 
 parties, to all intents and purposes whatsoever ; 
 
 Provided always, that no such objection shall be inquired into geyen days 
 by the said justices in special sessions unless notice of such ob- "°^"j^q° g^_ 
 jection in writing under the hand of the complainant shall havejections. 
 been given, seven days at least before the day appointed for such 
 special session, to the collector, overseers, or other persons by 
 whom such rate was made. 
 
14 
 
 CHAPTEE I. 
 
 GENERAL REMARKS UPON CLAUSE 15 (a). 
 
 It will be noticed that in clause 15, in order, most proba- 
 bly, to do away with the difference of opinion that seems hitherto 
 to have prevailed as to what was intended to be included in the 
 term gross rental in the Schedule, — that though the net rate- 
 able value, as defined in the 6 & 7 Will. 4, c. 96, is left un- 
 touched, the gross rental is specifically defined as follows : — 
 
 " The gross estimated rental, for the purpose of the schedule to this Act, 
 shall be the rent at which the hereditament might reasonably be expected 
 to let from year to year, free of all usual tenants' rates and taxes, and tithe 
 commutation rentcharge, if any." 
 
 And the Act of 6 & 7 Will. 4, c. 96, says,— 
 
 " No rate for the relief of the poor in England and Wales shall be allowed 
 by any j ustices, or be of any force, which shall not be made upon an esti- 
 mate of the net annual value of the several hereditaments rated there- 
 unto." 
 
 Which, for fear of ambiguity, is further explained and defined 
 to be — 
 
 '' That rent at which the same might reasonably be expected to let from 
 year to year, free of all usual tenants' rates and taxes, and tithe commuta- 
 tion rentcharge, if any, 
 
 and deducting therefrom the probable average 
 annual cost of the repairs, insurance, and other expenses, if any, necessary 
 to maintain them in a state to command such rent : provided always, that 
 nothing herein contained shall be construed to altei- or affect the principles 
 or different relative liabilities, if any, according to which different kinds 
 of hereditaments are now by law rateable." 
 
 Now it will be seen that this definition of the net rateable 
 value of the 6 & 7 Will. 4, c. 96, really consists of two parts 
 (though the phraseology is not very clear, hut that is a 
 
 (ii) Union Assessment Committee Act, 1862. 
 
15 
 
 common failing of Acts of Parliament), the former, extending 
 down to "tithe commutation rentcharg-e, if any," being the 
 gross rental ; the latter, extending to the end, being the net 
 rateable value obtained by the reduction of the gross rental by 
 the landlord's charges of repairs and insurance. By this sepa- 
 ration, made necessary by the former portion of the clause only 
 being altered by the 15th clause of the Union Assessment 
 Committee Act, the latter portion remaining untouched, the 
 meaning of the original clause of the 6 & 7 Will. 4, becomes 
 manifest. Clear, however, as the meaning of gross rental is 
 now, it was not always so ; and much and serious inconve- 
 nience has resulted in consequence, especially as regards the 
 operation of the income tax. 
 
 The poor law board, in their earlier instructions to parish 
 valuers, based those instructions upon the supposition that the 
 gross rental was such an amount as would be paid by weekly 
 tenants for whom all the rates, taxes, &c., were paid by the 
 landlord, in which case, the difference between the gross rental 
 and net rateable value would, of course, include the tenants' 
 rates and taxes (and tithe commutation rentcharge, \f any), as 
 well as repairs and insurance. And the income tax commis- 
 sioners at first made this gross rental their base or rateable 
 value for the income tax ; the result being, that where a land- 
 lord received from his tenant, under a yearly tenancy, the rent 
 of £100; instead of taking this as the gross rental, this £100 
 was increased by the tenant's rates and taxes, say £25, and the 
 gross rental was put down at £125 ; upon which sum, as his 
 vearly income, the landlord's income tax was calculated ; the 
 £25, be it remembered, never having even so much as gone into 
 his pocket. A principle most unfair, certainly, and evidently so, 
 when the amount of this false gross rental became placed side 
 by side with the rateable value which, taking the usual deduc- 
 tions from the £100 for repairs and insurance, would amount to 
 about £80. The two, then, standing side by side, thus, — 
 Gross rental £125. Rateable value, £80. 
 
10 
 
 So that a landlord, who had only a beneficial interest in the pro- 
 perty of £80, was called upon to pay a tax upon £125 ; this 
 amount being frequently made the basis of the county and other 
 rates. 
 
 It is unfortunate that the misconception of the proper construc- 
 tion of the clause has been only recently discovered ; though how 
 that misconstruction could have continued so long it is very dif- 
 ficult to understand. The ytordi free (a) has no noun with which 
 it can agree but that of rent, and that rent, being a landlord's 
 claim, could never be said to be free of the usual tenants' (not 
 landlord's) rates and taxes, &c., if the landlord had to pay them 
 out of his rent. The only possible way that the error in the first 
 instance might have arisen seems to be this, — it may be that 
 the poor law commissioners were in some degree influenced 
 by what would of necessity occur in the case of farms. 
 
 In ascertaining the rent that a tenant would give for a farm, 
 the incoming tenant cannot lose sight of the question of rates. 
 To him, as he has to pay them, the amount of poor's rates and 
 other tenants' charges becomes a serious matter. For, after 
 going carefully into the question what the net receipts would be 
 upon the year's cultivation, besides claiming for himself such 
 tenants' profits as he might consider himself entitled to, and 
 deducting that from the net receipts, he would have to make a 
 further deduction for the rates and tithe rentcharge, — the residue 
 alone being the amount of rent that he could aiford to pay to the 
 landlord. The poor law commissioners may have taken the first 
 balance and not the second, as the gross rent, which it virtually 
 is in some sense, as it is an amount that a tenant must first come 
 at before he can deduct for the rates and tithe rentcharge. It 
 is not so, however, really, as will be readily seen in the following 
 case. 
 
 Take two farms in different parishes, equally good, but the rates 
 
 (a) What, the participle " deducting therefrom" agrees witli, it is impossible 
 to say. 
 
17 
 
 in the one, double those in the other. It would follow that in both 
 cases, the net profits of working would be the same, and as the 
 tenants' profits would be the same, the difference would be the 
 same, which, according to the old instructions to surveyors would 
 represent the gross rental. Now, supposing that the rates in one 
 parish are much higher than in the other, which, as the tenant 
 in each case would have to pay them, would leave the rent that 
 one tenant could afford to give much higher than the other — 
 there would result this anomaly, that a landlord having a farm (of 
 equal productiveness in one parish with another farm in another 
 parish), for which farm he vvas receiving less rent, owing to the 
 heavy rates, &c. that his tenant had to pay, than what the land- 
 lord received from the other farm, would find himself rated for 
 an equally beneficial occupation with the landlord of this other 
 farm, though the respective rents received from the two are 
 very different. 
 
 To take the gross rental under the original instructions given 
 to surveyors, is evidently by levying equal taxes upon two parties 
 differently situated, to act unfairly, which no government ought to 
 do ; but to take the gross rental at all, even as now defined by 
 the Union Assessment Committee Act, 1862, is still very unfair, 
 as the new gross rental does not represent the really beneficial 
 occupation of the landlord. It says in the 30th clause of the 
 Union Assessment Committee Act, 1862, — 
 
 " When the assessment committee for any union shall have ap- 
 " proved valuationlists for all the parishes comprised within such 
 " union, ' the guardians of such union, in computing the amount of 
 " contribution to the common fund for the several parishes, shall 
 " thenceforward take the annual rateable value of the property in 
 " such parishes respectively from the valuation lists for the time 
 " being.'" Making the annual rateable value the measure of con- 
 tribution to the union expenses, or, in other words, the landlords' 
 yearly beneficial ownership of the premises, the measure of the 
 contribution for the premises to the common fund. Now, if the 
 
18 
 
 (net) rateable value (for it will be seen on turning to the Schedule 
 at the end of the Act, that the column is simply beaded rateable 
 value, and not net rateable value, so that the terras net rateable 
 value, and rateable value, and annual rateable value are syno- 
 nymous), be deemed a fair mode of apportioning the union 
 charges among the several parishes of a union, and parishes 
 have to contribute in proportion, not to their gross rentals, but 
 to the aggregate of their assessable, or net rateable property. 
 If 30, — and it certainly is so, — why should not the income tax be 
 calculated upon the same ? why should not the rateable value be 
 made the measure of the income tax ? And why should not these 
 valuation lists be used for that purpose, and for the county and 
 other rates ? Even taking the new gross rental under the Union 
 Assessment Committee Act will not prevent the greatest injustice, 
 all of which, without any trouble, would be got rid of, if the rate- 
 able value, and not the gross rental, was made the basis of assess- 
 ing for the income tax. For instance, there are two properties, for 
 each of which the respective landlords receive each £100 per 
 annum, under a yearly tenancy, not a weekly ; this £100 will 
 be the gross rental. Now, one property is brick, and just built, 
 and will require no repairs for three or four years to come ; the 
 other is old, built of wood, and needs £30 per annum to main- 
 tain the premises in a state to command the rent. Have these 
 two landlords the same beneficial ownership ? Do they each 
 derive the same income from the premises ? Certainly not. The 
 income of the one is £90, of the other £70. Ought they to be 
 charged income tax alike ? 
 
 Again, compare different classes of property — a farm, for 
 example, and the wooden buildings already referred to. The 
 reduction from the rent of the farm never exceeds 10 per cent, 
 for repairs and insurance, while 30 per cent, is often that of the 
 other. Ought these two owners to be charged alike ? Certainly 
 not. 
 
19 
 
 CHAPTER II. 
 
 Gross Rental. — Net Rateable. 
 1. ( Where the Tenant is not his own Landlord.) 
 
 The gross rental under the Act is the rent {a) that a landlord 
 receives from a yearly tenant,— the tenant paying the rates and 
 taxes and tithe commutation rentcharge, if any. So that to the 
 landlord the rent received by him is correctly stated as being 
 free of charges which the tenant has to pay. And the net rate- 
 able under the Act is the gross rental (or rent) reduced by the 
 landlord's liabilities of repairs, insurance, and other expenses, 
 if any, necessary to maintain the premises in a state to com- 
 mand that rent. Or it is the rent which the landlord receives 
 under a repairing lease, where the tenant repairs and insures, in 
 other words, the yearly value to the owner of the property, after 
 allowing for every yearly deduction, whether actual or other- 
 wise, necessary to maintain the property in a state to continue 
 to command that rent. It follows from the above, that as the 
 gross rental is the rent receivable under a yearly tenancy where 
 the tenant pays rates and taxes, the rent receivable by the 
 landlord for weekly tenements (V) does not represent the gross 
 rental, as the rates and taxes are not paid by the tenant. Conse- 
 quently, to convert this weekly rent into a yearly one, the rates 
 and taxes have to be deducted. The amount of these rates and 
 taxes becomes an element therefore in the consideration of the 
 question, as with a fixed gross weekly rent, the gross rental 
 would be higher or lower, as the rates were lower or higher, 
 varying inversely. 
 
 As to the deductions for repairs, it has been decided that it is 
 not necessary to have actually laid out in any one year the 
 
 («) Not absolutely, but subject to modifications hereafter explained. 
 (V) See weekly tenements scheme in Appendix. 
 
 c2 
 
20 
 
 amount allowed for the year 5 it is sufficient to show that such 
 an amount would be needed in the course of time. If the land- 
 lord neglects to use this amount in repairs, it is his own fault, 
 and brings its own punishment with it in diminished rent. 
 
 It must be understood that the amount of reparation needed 
 to a building varies very much with the age, character, and 
 materia], and that though the gross rental of two buildings jnay 
 be the same, yet the net maybe very different, and that though 
 the rent of the same building may be the same for several years, 
 and therefore its gross rental remain the same, yet the net rate- 
 able will after some years materially diminish, owing to the nu- 
 merous repairs that will become necessary. The system adopted, 
 therefore, of treating all properties alike, and striking off a 
 fixed per-centage of from 20 to 30 per cent, from the gross to 
 get at the net, is manifestly unjust to the holders of inferior class 
 properties, more particularly when the rent of a considerable por- 
 tion of the better class property is made up of garden accommo- 
 dation and other ancillary advantages not subject to any depre- 
 ciation at all. This unfairness prevails most strikingly when the 
 assessment includes, with the house, several acres of land. And 
 yet cases have been known where parties in occupation of such 
 properties have claimed to have the usual per-centage (with in- 
 ferior house property) calculated upon the whole. The above is 
 a parish evil, and affects the ratepayers within the parish, simply 
 as to their parish contributions among themselves, and can be 
 remedied by an appeal. A similar evil, however, and much more 
 serious in its consequences, exists as between parish and parish, 
 among the parishes of a union, arising from some parishes being- 
 rated at rack-rent, that is, at their full rateable value ; others 
 at 10 per cent., some at 15 percent., some at 20 per cent., others 
 perhaps at 30 to 40 per cent, reduction. Those lower rated con- 
 tributing unequally with the other parishes to their common 
 union burthen. This evil the union Assessment Committee Act, 
 1862, seeks to remedy, by furnishing to parishes the same powers 
 
21 
 
 of appealing against inequality and unfairness on the part of 
 other parishes, as the parishioners had against each other. ' 
 
 It must not be lost sight of, that as regards the former evil, 
 the individual ratepayer, besides his new remedy under clause 
 18, has, under clause 23, Union Assessment Committee Act, the 
 same power of appeal directly to the quarter sessions, if he pre- 
 fers it, or to the petty sessions, and thence, if dissatisfied, to the 
 quarter sessions, either on the ground of being over rated himself 
 absolutely, or of being unequally or unfairly rated as compared 
 with others within the parish, as he had before the passing of 
 the Act, which Act was evidently passed to su[)ply remedy for 
 the second evil, powers being given to the committee (see Clauses 
 32 and 33 of Union Assessment Committee Act, 1862, Pre- 
 liminary/ Chapter,) appointed under the Act, to see that the 
 parish valuation lists were made upon an uniform principle ; and 
 in case of any presumed unfairness or errors of judgment on 
 the part of the committee as between the several parishes of the 
 union, powers being also given to any one parish fancying itself 
 aggrieved, to appeal to the quarter sessions for redress. 
 
 Rent, however, even though distinguished as above between 
 that paid under a lease and under a yearly tenancy, does not 
 absolutely constitute the measure of net annual value. To make 
 rent the measure, it must be "from year to year ;" not any one 
 year's rent only ; for though the rent actually given under lease 
 may be a guide to the annual value, yet it is not necessarily the 
 measure of it. It may, or may not at all, be equal to the aver- 
 age. Thus, the rent agreed to be paid by one railway company 
 to another may, in many cases, be widely different from what 
 the line would let for from year to year. They may have rented 
 the line under various circumstances, and with various objects. 
 To retain a district to themselves, or to shut out an opponent, it 
 may have been worth their v/hi\e to have given that rent, though 
 it would not have been anybody else's. 
 
22 
 
 Or they may have entered into the agreement improvidently, 
 under a misconception, and upon an erroneous estimate of the 
 value of the line, either "per se" or as a " feeder." Still there 
 is the rent, and they must pay it, though, were the line now in 
 the market, it would not, perhaps, fetch one-third of what they 
 had agreed to give. 
 
 So also with house property. A speculative builder runs up a 
 block of houses ; he wants to get them let ; to do so, he accepts 
 any offer almost for a few of them ; either gives a short lease, 
 or lets them at a three years' agreement. The rent so paid 
 under such circumstances is not the measure of the net rateable 
 value under a lease, nor of their gross rental under a three 
 years' agreement. 
 
 Rent evidently, therefore, cannot be made the measure of 
 either house or railway gross or net rateable values. Still, 
 though not the measure, it becomes, in many cases, the best 
 basis to start from in determining that value, especially in house 
 property, where the various circumstances that would tend to 
 modify it are easily accessible. 
 
 Lord Denman, in his remarks upon the subject (of rent) in 
 the case of the Queen v. The Great Western Railway Company, 
 in the Tilehurst case (a), seems to have fallen into some error, or 
 to have had his words misquoted. He says — 
 
 " If the rate in question had been imposed on land forming any part of 
 the branch lines themselves, it is clear that the circumstances of the 
 receipts not equalling the rent — in other words, that Ihe line was worked 
 at a loss, — could not have affected the rate. The occupation would still have 
 been beneficial in the sense in which that word is used for the purpose of 
 assessing the rate." 
 
 Thus far he is perfectly correct, and had he ended here, all 
 would have been well ; but he goes on to say — 
 
 " And the rent which, from whatever motive the appellant found it worth 
 while to give, would have regulated the amount." 
 
 (a) Luxo Journal, vol. 15, (N. S.), p. 88, Magistrates' Cases. 
 
23 
 
 Only if those motives were permanent in their nature, and 
 unchangeable in their measure; otherwise, they might cease 
 altogether, or they might become less weighty from year to 
 year. The rent once given may be no measure of the annual 
 value (a). If the property were held under a lease, the terms of 
 the lease would have to be taken into consideration in the first 
 place, and in the next, it would have to be considered whether 
 property had risen or fallen in value. Were it, on the contrary, 
 held under a yearly tenancy, the rent paid would be the best 
 criterion, and in most cases would correctly represent the gross 
 rental, but not always. But in either case, where the landlord 
 and tenant are different persons, there is little difficulty with 
 house property in ascertaining the rateable value. 
 
 Gross Rental. — Net Rateable. 
 
 2. ( Where the Tenant is his own Landlord.) 
 
 Comprising railways, gasworks, waterworks, canals, and other 
 public companies. 
 
 In this case, however, where the landlord and tenant are one 
 and the same person — that is, where the tenant is his own land- 
 lord, there must of necessity be considerable difficulty in deter- 
 mining it, especially if the property be of a new kind, and none 
 similar in extent or character be found in the neighbourhood. 
 With house property this circumstance does not exist, but with 
 all other property held by public companies and large manu- 
 facturers it does, and the question becomes seriously compli- 
 
 (ffl) See South Eastern Dorking case, 3 E. & B. 491 ; 23 L. J. (N. S.) 
 M. C. 84. 
 
24 
 
 cated — take, for instance, gas companies, waterworks, canals, 
 mines, and, lastly, railways. All these are in the occupation of 
 their owners, and though they may have paid rent for their 
 oflBces, yet in most cases, heing in possession of the fee simple, 
 they have never done so for their works. These works, how- 
 ever, being the means of a beneficial occupation of the soil, 
 have a rateable value, and are assessable to the relief of the 
 poor in proportion to the extent of that beneficial occupation, 
 or to the rent that a tenant would give to come into possession 
 of that occupation. 
 
 Now, the difficulty that exists in all these cases is that of 
 separating the beneficial occupation, or the net receipts, into 
 their two component parts, belonging respectively to the land- 
 lord and tenant. 
 
 Stock in trade is not rateable. 
 
 Profits in trade are not rateable ; 
 but where certain profits arising from certain gross receipts are 
 attached to a locality, and under transfer of occupancy cannot 
 be separated therefrom, those profits would form a consideration 
 in the opinion of an incoming tenant, and would influence him 
 in the rent he would give, as, if he could secure some of them, 
 he would be willing to hand over the " remainder" to the land- 
 lord. The difficulty is to distinguish between making these 
 profits the measure and the " element " of the rent ; they must 
 not be the former, or you would be rating profits; they must 
 be more than the latter, or you would be losing sight alto- 
 gether of what constitutes the main feature of the case in the 
 eyes of the tenant, i. e., his own profits. 
 
 Under these circumstances it has been usual, with respect to 
 all questioTis of this hind, for the contending parties to consider 
 the gross receipts as including all the elements of the rent. 
 
 The gross receipts comprehend, of necessity, the three fol- 
 lowing items : — The tenant's working expenses, which deducted 
 from the gross receipts become the profits above referred to, 
 
25 
 
 which profits are then divisible into the tenant's profits, and 
 the landlord's rent, whatever the subject matter of the occu- 
 pation may be. 
 
 Tenant's Working Expenses. 
 
 The first of these items can be generally obtained from the 
 company's books, and admit of positive proof. 
 
 In the case of Railways. 
 
 The working expenses consist of, — 
 ] . Locomotive expenses. 
 9. Carriage and waggon expenses. 
 
 3. General charges. 
 
 4. Tenants' rates and rentcharge. 
 
 In the case of Water and Gasworks. 
 
 1. Cost of manufacture. 
 
 2. Cost of distribution. 
 
 3. General charges. 
 
 4. Tenants' rates and rentcharge. 
 
 The working expenses deducted from the gross receipts will 
 leave the net receipts or profits, being a sum to be divided, as 
 has been said before, between landlord and tenant. 
 
 Subdivision OF Phofits between Landlord and Tenant. 
 
 In determining the respective proportions to each, we must 
 consider that " no concern can be entered upon without capital," 
 and according to the amount of capital invested, so does the 
 tenant expect his profit ; for out of the amount left as above 
 belonging to landlord and tenant, it is clear that a tenant 
 
26 
 
 would be willing to hand over the remainder as rent to the 
 landlord, only after he had paid himself that amount of liberal 
 profit upon his capital which he might fairly expect upon the 
 amount invested. It has never been denied that the tenant is 
 entitled to be allowed his tenant's profits ; but the amount of 
 per-centage has been the source of constant misunderstanding. 
 
 Where the stock is of a perishable nature, the tenant is also 
 to be allowed a yearly sum for keeping that stock up, unless 
 the necessary repairs and renewals are done yearly, and charged 
 already in the working expenses. 
 
 The tenant's (which is a first) claim, consists, in the case of 
 all companies, of his profits upon the money required to buy 
 the stock to work the business, including the profits upon his own 
 skill and labour, and of a fund to be laid aside yearly to main- 
 tain the market value of the stock. 
 
 These items are all matters in dispute, not as to whether 
 they should be admitted, but what their amount should be. 
 
 These tenants' allowances deducted from the net receipts 
 will give the gross rent belonging to the landlord. 
 
 This gross rent will include all the landlord's repairs and 
 insurance of the subject matter of the occupation. 
 
 In the case of Railways. 
 
 Maintenance (a) of way, works and stations (in its fullest 
 
 sense). 
 Insurance. 
 
 In the case of Gas and Watei-works. 
 
 Maintenance of reservoirs ; filter beds. 
 Maintenance of mains and pipes. 
 Maintenance of buildings, plant, and insurance. 
 These, in all cases, are in dispute. 
 
 (a) The Act 6 & 7 Will. 4, uses simply the word maintain, and "other 
 " expenses (if any) necessary to maintain them in a state to command such 
 " rent." -• 
 
27 
 
 CHAPTER III. 
 
 Assessment of Railways. 
 {As one Whole, or where the Secdpts are Uniform throughout.) 
 
 In applying- these general principles to ascertain the rate- 
 able value of railways, it will be best, at first, for clearness' sake, 
 to treat the railway as one entire concern, divisible among' the 
 parishes according to length mileage. 
 
 Now, as the accounts are made out half-yearly, there will be 
 no difficulty in ascertaining the gross receipts of the whole hne, 
 and the total expenses incurred in earning them. These items 
 are necessary to enable the directors to decide upon the divi- 
 dends. It will be requisite to remove out of the receipts all 
 such items as, though serving to increase the dividend, are not 
 due to the profits of working directly or indirectly, as well as 
 out of the disbursements items not properly chargeable to the 
 receipts. 
 
 The disbursements are generally classified thus, viz. ; — 
 
 1. (5) Locomotive account. 
 
 2. Carriage account. 
 
 3. General charges. 
 
 4. Rates, taxes, government duty, and insurance. 
 
 No. 1. Locomotive account — includes repairs and renewals, as 
 well as working expenses, together with the necessary labour for 
 both. 
 
 No. 2. Carriage account — includes the same. 
 
 No. 3. General charges — includes items that, were the com- 
 pany managed by a tenant, would not be incurred, or, if he 
 
 (J) The companies begin with maintenance of way ; but this is a landlord's 
 deduction, and should be introduced only after the gross rental has been 
 ascertained. 
 
28 
 
 were allowed them, he would be satisfied with less interest for 
 his capital. 
 
 And also includes terminal expenses, which are expenses in- 
 curred on account of goods traflBc, for work done at the stations, 
 for porters and agents employed in collecting, distributing, and 
 delivering- the goods. 
 
 No. 4. Rates and taxes and government duty — 
 
 Alltheseitemsbeingdeducted from the gross receipts, the balance 
 is the net revenue due to the whole concern, line, and stations. 
 
 As this revenue would have to be shared between the landlord 
 and tenant, what is due to the tenant must be first ascertained, 
 as the balance only will be the landlord's. 
 
 It was at one time considered, that as the tenant on coming 
 in would necessarily have to take to the stock in hand, or move- 
 able plant, since without this the railway could not be worked, 
 and as he would, if he had not the money in hand, be obliged 
 to borrow it, he would have to pay interest thereon, and that 
 consequently he ought to be allowed interest upon the money 
 borrowed. This is not the opinion of some persons now. See 
 Pashley's judgment, and detailed observations upon the per- 
 centages for tenant's capital. He would also expect to receive a 
 per-centage for himself as tenant's profits upon the same stock. 
 Again, as the working stock and permanent way would be in 
 constant use, and would require renewing at some time or other, 
 he would look for a yearly deduction to meet these also. The 
 renewal of the stock he would be entitled to as a tenant. Should 
 renewals have taken place in the year, and been already charged 
 for in the disbursements, they could not, of course, be charged 
 for again. 
 
 The deductions (of the tenant) claimed are, viz. : — 
 A per-centage upon the moveable plant, for interest (disputed); 
 ditto ditto for tenant's profits ; 
 
 ditto ditto for depreciation ; 
 
 and tenant's rates and taxes already allowed. 
 
 The remainder is due to the landlord as rent, or gross rental. 
 
29 
 
 To Ascertain the Net Rateable. 
 
 The net rental is obtained by a further deduction of the item 
 which generally comes first in the railway companies' accounts, 
 and is designated maintenance of way. 
 
 This item of maintenance of way includes not only maintenance 
 of way, properly so called ; but repairs of stations, bridges, and 
 renewal of rails, chairs, sleepers, &o. 
 
 The amount thus ascertained as above for net rateable, both 
 of line and stations, having to be divided among parishes, some 
 of which have, while the rest have not, stations within them, the 
 amount due to the stations must be first deducted, and then the 
 remainder divided among the parishes in proportion to their 
 length. Increase this by the amount due for the stations in the 
 several parishes, and the result is the rateable value of the rail- 
 way in each parish. 
 
 The above is the principle recognized by both companies and 
 parishes, though, at one time, the railway companies wished to 
 substitute tolls (a) for gross receipts. The facts or figures which 
 
 (a) The first or almost the first railway case submitted to the Court of 
 Queen's Bench was that of the parish of Mitcheldever, Queen v. The 
 London and South-Western Railway. The question was, whether the 
 rateable value should depend upon the tolls (advocated by the company), 
 or upon gross receipts (contended for by the parish), and whether, when 
 calculated upon either of these principles, as a whole, the rateable value 
 should be apportioned among the parishes in respect to their comparative 
 lengths, or to their respective gross receipts ; in other words, whether it 
 should be upon the length mileage, or upon the parochial system. The 
 court held, that the gross receipts were to be made the basis of the rate, and 
 not the tolls ; and that the subdivision among the parishes should be made 
 upon the parochial system, and not upon length mileage. — Law Journal, 
 No. 11, (N. S.), Magistrates' Cases, p. 93. 
 
 In the case of the parish of Leighford, Queen v. The Grand Junction Rail- 
 way Company, the latter again contended that the tolls were the proper basis 
 
30 
 
 are used to apply the principle are still in dispute. Before, 
 therefore, going into the next case, where the mileage division 
 now assumed is, in conformity with the decision of the Court 
 of Queen's Bench discarded, and where the parochial prin- 
 ciple is carried out, it will be desirable to go into these 
 differences of opinion, which it is more easy to do, as regards 
 the items of expenditure above enumerated, while the case is a 
 simple one, than when it becomes complicated, and to point out 
 those items of deduction, in which the parties differ, and consider 
 them seriatim. 
 
 I. Locomotive Account, 
 
 divisible into 
 
 Working! Expenses, which include labour, such as guards, 
 engineers, stokers, cleaners, &c. ; and materials, viz., tallow, 
 oil, coke, &c. ; and 
 
 Repairs and Renewah; with wages to mechanics, labourers, 
 and the necessary materials. 
 
 Now, all these items are fairly chargeable against the receipts, 
 being disbursements necessarily incurred in earning those re- 
 ceipts, and in maintaining the tenant's stock. 
 
 Renewals cannot be charged again unless it is proved by ex- 
 perience that the amount for renewals charged in the company's 
 accounts in any one year were less than what the average ought 
 to be ; that average being measured by a sinking fund set aside 
 yearly at compound interest, to meet, by its realization, the cost 
 of replacing the stock at the end of a given time. The com- 
 pany would be entitled to charge the average, though in a given 
 year they might actually spend less ; because, were they to lay 
 
 of the rate, but the decision of the court was against them. — Law Journal, 
 vol. 13, (N. S.), Magistrates' Cases, p. 94. 
 
31 
 
 out more than the average they would not be allowed it, no 
 more than the landlord of a house who paints once every three 
 years would be allowed to deduct the whole so spent in that 
 one year. 
 
 II. Carriage and Waggon Expenses. 
 
 These charges are principally for repairs and maintenance, 
 and are open to the same remarks as those for locomotive repairs 
 and maintenance. 
 
 III. General Charges. 
 
 Many of these charges are for direction and management ; 
 being really expenses incurred as between the managing body 
 and the shareholders, &c., &c., and therefore ought not to be 
 allowed. 
 
 IV. Rates, Taxes, and Government Duty. 
 
 No objection can be taken to any of these items of deduction. 
 
 Tenant's Allowances. 
 
 The amount of these disbursements being correctly ascertained 
 and deducted from the gross receipts, the next items for deduc- 
 tion are — the " tenant's allowances," which are nom calculated 
 upon the assumed value of the " moveable plant," engines, car- 
 riages, tools, furniture, &c., as best representing the capital of 
 the tenant. 
 
 The results of the different way in which companies and 
 parishes look at the question will be .seen roughly in the follow- 
 ing comparative estimate of an hypothetical case. 
 
32 
 
 COMPARATIVE ESTIMATE OF 
 ONE HUNDRED 
 
 According to views of Appellants. 
 
 Guoss Receipts: — 
 
 Being the entire earnings of the railway for one year 
 
 from all sources of traffic . . . . . . . . £400,000 
 
 Working Expenses, 
 including — 
 Maintenance of way 
 Locomotive expenses 
 Carriage and waggon expenses . . 
 Miscellaneous expenses . . . . . . . . . . / £200 000 
 
 Government duty . . 
 Tithe rent charge „ . 
 Rates and taxes 
 
 Net receipts . . 
 
 Occupier's Share, 
 including — 
 Interest on capital . . 
 Trade profits 
 
 Insurance against risks and casualties 
 Depreciation of rolling stock 
 
 Oross estimated rental 
 Statutable Deductions : — 
 
 Annual sinking fund, to provide for the renewal of way 
 and works 
 
 Net rateable value of the railway and stations 
 
 £200,000 
 
 £100,000 
 
 £100,000 
 
 £16,000 
 £84,000 
 
33 
 
 A MAIN LINE OF RAILWAY, 
 MILES LONG. 
 
 According to views of Eespondents, 
 
 Gross Receipts: — 
 
 Being the entire earnings of a railway, say 100 miles long, 
 from all sources of traffic 
 
 Working Expenses: — 
 
 Maintenance of way omitted here 
 
 Locomotive expenses 
 
 Carriage and waggon expenses . . 
 
 Miscellaneous expenses (excluding risk and casualties) 
 
 Government duty . . 
 
 Tithe rent charge . . 
 
 Rates and taxes 
 
 £400,000 
 
 Net receipts . . 
 
 Occupier's Share: — 
 
 Trade profits, including interest on capital 
 Insurance against risks and casualties . . 
 Depreciation of rolling stock, usually included in work- 
 ing expenses . . 
 
 Gross estimated rental 
 
 Statutable Deductions : — 
 
 Maintenance of way and works, which includes renewal 
 
 of the same . . 
 
 JVet rateable value of the railway 
 
 ) 180,000 
 
 £220,000 
 
 50,000 
 
 £1?0,000 
 
 30,000 
 £140,000 
 
35 
 
 BRIEF HI8T0KY OF RAILWAY RATING 
 UP TO 1868. 
 
 Before enumerating the several cases that have been brought 
 before the court of Queen's Bench, a few observations will be 
 found useful. They will materially contribute to a better under- 
 standing of the subject. 
 
 A few years ago railway rating, like railway making, was an 
 entirely new subject. Surveyors had to apply their experience 
 on other subjects in the best way they could to making a valua- 
 tion upon this. The valuation of house property furnished no 
 precedent, but that of farms to some extent did. The principle, 
 previously adopted in farms, the surveyors of the day applied to 
 the valuation of railways, bringing whatever experience they 
 had in other matters to bear upon any subordinate points that 
 were incidental to the application. 
 
 The principle of farm valuation is simply this : deduct the 
 working expenses from the gross produce or farm receipts, and 
 apportion the remainder between the tenant and landlord. 
 
 This principle they applied to railways in this way, they 
 took the gross receipts of the line, they deducted the working 
 expenses, and the remainder they divided between the tenant 
 and landlord, in the best way they could, as they then understood 
 the subject, allowing such amount for interest of capital in- 
 vested in stock, tenant's profits thereon, and depreciation or loss 
 for the year's wear and tear on its selling value, as was in con- 
 formity with their experience in other matters. 
 
 This being the case, it will be readily perceived that certain 
 allowances may have been agreed to by the surveyors on both 
 sides in their then ignorance of the subject, and embodied as 
 facts in any case which may have been brought before the court of 
 
 D 2 
 
36 
 
 Queen's Bench, very different to what further acquaintance with 
 the subject would justify. And the inference is simple (which 
 may be converted into an axiom for the general reader, an axiom 
 they would do well not to lose sight of throughout the work), 
 viz. — 
 
 Facts so found by the courts of Quarter Sessions or by arbi- 
 trators, whether by agreement in the case or by evidence, and 
 by which facts the court of Queen's Bench is bound in laying 
 down the law, are not necessarily facts (vulgd) after all. 
 
 And again, facts, which are not essential and which in no way 
 affect the judgment of the court, but are only embodied in the 
 findins: of the sessions, become in no way part of the judgment 
 of the court, nor recognizable as such, but remain simply facts 
 in the case, not facts in perpetuo. 
 
 In some of the earlier cases, Reg. v. London and South 
 Western Railway Company, in 1842 {a), and Reg. v. Grand 
 Junction Railway Company, in 1844 (J), 5 per cent, interest 
 was allowed, 20 per cent, tenant's profits, and 12J depreciation. 
 In the Great Western case (thejlrst) 5 per cent, interest, and 
 10 per cent, profit only was allowed by the sessions, adversely, 
 although a higher sum was asked for by the company, and 
 nothing was asked for depreciation. 
 
 This shows that within a period of from two to four years the 
 surveyors on both sides had become better acquainted with the 
 subject, and that per centag'es agreed to in their ignorance, were 
 now become matters of serious dispute, and that when the at- 
 tention of quarter sessions was called to the subject by the 
 matter being in dispute before them, they recognized the in- 
 creased experience of the surveyor, and rejected those facts which 
 from agreement they had previously acquiesced in. And so 
 did the railway companies on their part get wiser too, for in 
 these same earlier cases the companies, in their ignorance of the 
 
 (a) 1 Q. B. 658 ; 11 L. J. (N. S.) M. C. 93. 
 (6) 4 Q. B. 18 ; 13 L. J. (N. S.) M. C. 94. 
 
37 
 
 subject, went for £30 per mile only for renewal of way in one 
 case, and £100 per mile in another. 
 
 In fact, both parties, companies and parishes, appellants and 
 respondents, were quite new to the subject. They began in 
 ignorance, they asked and conceded in the first instance what 
 was unreasonable on both sides, they learned their business as 
 they went on, and they are learning it still, and the reader 
 should be careful to accept of nothing in the past as conclusive 
 upon the future, unless what has been laid down by the court of 
 Queen's Bench, and then only upon facts, not as legally under- 
 stood, but as vulgarly understood. 
 
 About the year 1842, The London and South Western Eailway A. M. 1842. 
 Company, who being themselves the sole carriers upon their line, ^"" Western 
 had caused lists to be made out, in compliance with the requirements Company, 
 of clause 82 of the Amended Act, 1 Vict. c. 71 (a), showing what 
 
 (a) And whereas by the said recited Act it was enacted, that in all cases 
 in which the said company should carry for their own profit any passengers, 
 cattle or other animals, goods, wares, or merchandizes, articles, matters, 
 and things, a separate account should be duly kept showing the amount of 
 rates or tolls which would have been received by the said company for 
 the use of the said railway in respect of such pat^sengers, cattle or other 
 animals, goods, wares, merchandize, articles, matters, or things, if carried 
 by any other party or parties ; and that the said company should also keep 
 a separate account of the amount of the rates or tolls which should from 
 time to time be received by the said company for the use of the said railway 
 in respect of any passengers, cattle and other animals, goods, wares, and 
 merchandize, articles, matters, and things, carried by any other party or 
 parties; and that the overseers of the poor of the several parishes and town- 
 ships through which the said railway should pass should have free access to and 
 liberty to inspect the same at any times during the first fourteen days in the 
 months of February and August in each year : And whereas it is expedient 
 by means of a sufficient penalty to insure the keeping and inspection of such 
 accounts; be it further enacted, that if the said company shall neglect or 
 refuse to keep such account or to permit such inspection as aforesaid they 
 shall forfeit and pay for every such neglect or refusal the sum of three hundred 
 pounds, and the further sum of fifty pounds for every day during which 
 such neglect or refusal may continue. 
 
38 
 
 would have been the tolls they would have received had other per- 
 sons, being carriers over their line instead of themselves, contended 
 that the rateable value of their property should be based upon the 
 toU, and not upon the receipts they themselves had taken. The 
 court decided that the estimate should not be confined to tolls 
 actually taken or estimated for, but should include such other value 
 as might be included in the traffic receipts (a). 
 
 In this case it was conceded during the argument, that after having 
 ascertained what the entire rateable value of the whole system should 
 be, that that value was not to be apportioned per length mile, but in 
 the proportion that the parish receipts bore to the entire receipts. 
 
 A. M. 1844. 
 Grand Junc- 
 tioD Railway 
 Company. 
 
 In the year 1844, The Grand Junction Railway Company (J) 
 brought the matter again before the court of Queen's Bench, 
 and claimed to have the tolls alone made the basis of the rateable 
 value. 
 
 This company held a propei"ty which was worked under different 
 circumstances to that of the South Western ( b). They themselves 
 exercised their trade as carriers. Other companies travelled over 
 their line and paid them toll for doing so. Some parties found their 
 own carriages and paid the company for the use of their locomotive 
 power and for their station services. The company in this case con- 
 tended that the tolls and compensation they received from other 
 companies, and the tolls they would have received under their Act 
 from other parties who might have worked the traffic they themselves 
 worked, should alone be made the basis of the estimate of rateable 
 value. 
 
 The court of Queen's Bench, through Lord Denman, C. J., ruled 
 as regards this latter case, after reciting the several facts found in the 
 case submitted to them, to the same purport as in the South Western 
 case — viz., that notwithstanding a similar clause in the Special Act of 
 this company as in that of the South Western, traffic receipts as well 
 as tolls, should be included, and that all should be made the basis of 
 the estimate. With respect to the apportionment of the whole rate- 
 
 (a) 1 Q. B. 558 ; 11 L. J. (N. S.) M. C. 93. 
 (6) 4 Q. B. 18; 13 L. J. (N. S.) M. C. 94. 
 
39 
 
 able value to the particular parish, the court was not, any more than 
 in the case of the South Western, called upon to give any opinion, as 
 the parties by agreement had apportioned the whole according to 
 length mileage. As to this his Lordship simply says, — " A principle 
 very convenient in itself, and rightly adopted by consent." 
 
 The decision given in these two cases unquestionably established 
 these two principles, — viz.. First, that all the sources of income are 
 to be taken into account by the hypothetical tenant, who is supposed 
 to be hiring the line, and that if this tenant were allowed his tenant's 
 profits as a deduction, the parishes would not in so doing be rating 
 the profits of trade ; and, Secondly, that inferentially, if the 
 exception proves the rule, the division of the whole rateable value 
 according to mileage, would not have been confirmed if the point had 
 not been, by consent, taken out of the jurisdiction of the court. 
 
 The judgment certainly does not however lay down the rule that 
 sub-division should be according to receipts. 
 
 After that period this toll clause was omitted in the special Acts of 
 all new railway companies, and in lieu thereof a clause was inserted 
 in the Railway Clauses Consolidated Act, (an Act passed in 1845, and 
 incorporated in all the special Acts,) which enacted as follows, viz. : — 
 
 " And be it enacted that the company shall every year cause an 
 " annual account in abstract to be prepared, showing thetotal receipts 
 " and expenditure of all funds levied by virtue of this or the special 
 " Act for the year ending on the 31st day of December, or some other 
 " convenient day in each year, under the several distinct heads of 
 " receipt and expenditure, with a statement of the balance of such 
 " account, duly audited and certified by the directors or some of 
 " them and by auditors, and shall, if required, transmit a copy of the 
 " said account, free of charge, to the overseers of the poor of the 
 " several parishes through which the railway shall pass on or before 
 " the 3 1st day of January then next, which last-mentioned account 
 " shall be open to the inspection of the public at all reasonable hours 
 " on payment of the sum of one shilling for every such inspection." 
 
 The next case was thai ot Reg. v. The Great Western JRailmay j^_ -j/f^ i^a^ 
 Company, known as the first Tilehurst case (a), in which judgment Great Western 
 
 (a) 6 Q. B. 179 ; 15 L. J. (N. S.) M. C. 80. 
 
40 
 
 Company, was given in 1846. In this case the appellants claimed a deduction 
 first Tilehurst f^ renewal of way. This the court refused, because the company- 
 had charged all the renewals that were required to be done against 
 capital; secondly, the appellants claimed a deduction for stations 
 elsewhere rateable ; this the court allowed. They also claimed interest 
 upon monies expended in getting up the company. This was dis- 
 allowed. They claimed deductions in respect of the payment of 
 £10,000 as income tax. The court considered this claim unsatisfac- 
 torily stated and refused it (a). They also claimed to take into account 
 the higher rates they would have to pay if the increased assessment 
 should be established. The sessions had allowed this, but the court 
 said the sessions would have been perfectly justified in not allowing 
 it to stand part of the case. They further claimed a deduction for 
 the losses on the two branch lines. This the court also refused, 
 alleging that though as between themselves and their shareholders 
 they may deduct for the loss, as it must be treated as money laid out 
 on the improvement of the main line, yet, as between them and the 
 parishes on the main line, the outlay incurred in the loss upon the 
 branches could not be deducted from the profits on the main line. As 
 to the first of two other points raised, viz., — Should the tenant's 
 capital be taken at the same amount as the receipts, or should it be 
 taken at what the plant actually cost, the court declined to give an 
 opinion, though as to the other, they indicated their opinion that the 
 sessions were not called upon to go back a period of years in order to 
 ascertain what the original value really was (A). 
 
 (o) A railway company are at once owner and occupier. As owner or 
 landlord they are bound to pay income tax upon the rent, (which, however, 
 by the Income Tax Act, cannot be made an item of deduction for the poor 
 rate), and therefore whatever portion of this £10,000 was due from them as 
 landlords, was properly struck out. The remainder, which would be calcu- 
 lated upon their profits of trade, and which as tenants they would be bound 
 to pay, they would certainly be entitled to deduct, as the hypothetical tenant 
 would have to reckon it as one of his necessary outgoings. And pro tanto 
 he would be able to give so much less rent. 
 
 (6) This last point will be fully raised and decided in the North Staflford- 
 shire Case. (30 L. J. (N. S.) M. C. 68.) Vid« postea, p. 59. 
 
41 
 
 After the decision in the Great Western Case, some few years A. M. 1851. 
 elapsed before any further decision was given. In 1851, however, o"?l!*S°'f 
 decisions in three cases were given at once ; the railway companies and Midland 
 being the London, Brighton and South Coast (a), the South Eastern CompanieB. 
 Railway (i), and the Midland Railway (c). In the case of each of 
 these companies a common point was raised for the opinion of the 
 Court, that point, which in the case of the South Western Railway 
 Company (d), had been agreed to on one principle, and in that of 
 the Grand Junction ( e ) on the opposite, viz., which was the correct 
 mode of arriving at the rateable value of a railway in any parish, the 
 mileage principle or the parochial? (_/'). 
 
 In consequence of this point being common to the three cases, and 
 of the importance of the interests involved, though the Brighton rate 
 appealed against was made in 1847, the Midland rate in 1848, and 
 the South Eastern in 1848, no decision was given till 1 851. 
 
 Mr. Justice Coleridge, after reciting the facts stated in the case, 
 says, " the first question is as to the principle on which the rate was 
 " to be imposed ; whether upon what is caUed the mileage principle, 
 " that is, by treating the whole line, trunk, and branches as an entire 
 " subject-matter, and the whole rateable value, however constituted, 
 " as entire, and then dividing it among the several parishes simply, 
 " according to the distance which the line passes through each; or 
 " upon the ordinary principle of ascertaining the actual rateable 
 " value of the land occupied by the company in each parish, by the 
 " rules which are applicable to any other land occupied by other 
 " bodies or persons for other purposes ;" and giving judgment in 
 the Brighton case, rules, " we are of opinion that the respondents 
 " are right in their principle of assessment." That is, the mileage 
 principle is wrong because it is not parochial. It may not be uninte- 
 
 (a) 15 Q. B. 313; 20 L. J. (N. S.) 124. 
 (6) 15 Q.B. 344; 20 L. J. (N.S.) M. C. 137. 
 (c) 15 Q. B. 353; 20 L. J. (N. S.) M. C. UO. 
 (rf) 1 Q. B. 558; 11 L. J. (N. S.) M. C. 93. 
 (e) 4 Q. B. 18 ; 13 L. J. (N. S.) M. C. 94 
 f/) Or "not the mileage." 
 
42 
 
 resting to state here, that in the Brighton case, the company 
 contended for the mileage principle; in the Midland case, 
 and in that of the South Eastern, the companies contended for 
 the parochial principle. The Brighton parish was on the main Une. 
 The Midland and South Eastern parishes were upon branches. The 
 parishes concerned were also contending for opposite principles. 
 
 The question, therefore, had evidently become an important one, and 
 a final settlement was imperative. 
 
 In the Brighton company's case there were other points raised for 
 the decision of the court, which it may be desirable briefly to 
 mention. 
 
 Between Croydon and Eeigate the line of railway belongs half to 
 the Brighton, half to the South Eastern, each company being em- 
 powered to run over the other company's half free of toll. The 
 parish of Croydon is within, the northern half, which belongs to the 
 Brighton, and over which the South Eastern pass free. The parish 
 of Croydon, besides the earnings belonging to the traffic of the 
 Brighton Company, had included in their assessment of that com- 
 pany's occupation in Croydon, an amount for such tolls as the South 
 Eastern Company would have paid if they had not been empowered to 
 pass over toll free. 
 
 Was the parish right in so doing ? 
 
 Upon this point the court dehvered the following judgment : — 
 
 " The third question arises on what is called the exchange toll. 
 
 " The substance of the transactions between the appellants (London, 
 " Brighton, and South Coast Company), and the South Eastern Com- 
 " pany, out of which this arises, appears to be this : that the traffic of 
 " the latter is to pass free over a certain portion of the line of the former, 
 " in consideration of the traffic of the former passing free over a certain 
 " portion of the line of the latter. A certain distance, between two and 
 " three miles, of the appellants' line within the parish of Croydon is 
 " aifected by this arrangement. We think that the sessions rightly 
 " decided this to be rent in kind earned by the land. It seems to us 
 
43 
 
 " exactly the same in substance as if so many tickets were daily issued, 
 " without money paid for them, to the South Eastern Company, in 
 " I'etum for so many received from them. The tickets mutually trans- 
 " ferred would, on either side, represent so much money earned. But 
 " then, we think these earnings must be subject to exactly the same 
 " deductions as if they were received in money." 
 
 It must be understood, with reference to the concluding remark of 
 the court, that tickets are not tolls, and that in requiring' the usual 
 deductions to be made, it is only as from tickets issued, which being 
 equivalent to fares, would represent the gross earnings. Tickets 
 represent toUs (a), plus working expenses, plus tenant's profits upon 
 the working. 
 
 There was another point raised in the Brighton case, which was 
 an important one, mz. : — The rate being made in November, 1847, 
 the parish having only the half-yearly accounts up to 30th June, 1847, 
 accessible to them when the rate was made, contended that the rate 
 should be based upon the receipts and outgoings up to that time, and 
 consequently that no deductions for plant introduced between June 
 and December should be taken into account. The appellants con- 
 tended that they should. What does the court say upon the subject ? 
 The court says : — 
 
 " The only remaining point in this case turns upon the narrow 
 " question, from what date the overseers ought to make their calcu- 
 " lation as to the assessment upon the company?" 
 
 After recapitulating the facts, the learned judge proceeds : — 
 
 " The overseers, in making a prospective rate, are to make it on 
 " the supposed prospective value, ascertained by them, as well as they 
 " can, from the latest evidence in their power as to antecedent value ; 
 '' it cannot be required of them that the assumed value and the actual 
 " value should correspond with perfectly minute accuracy ; and they 
 
 (a) Tolls themselves being net rateable plus maintenance of way, plus 
 profits on tolls. 
 
44 
 
 " were quite justified in making their rate upon the latest published 
 " account, if that was the latest information they had, or could be 
 " reasonably expected to procure ; and we should not think a rate 
 " ought to be quashed where this had been done. But if the company 
 " had communicated to them this new fact before the rate was made, 
 " no doubt they ought to have taken it into account if they believed 
 " it ; and if they did not, and on appeal, the company had satisfied 
 " the sessions of the fact, the appeal ought to have succeeded." 
 
 It is important that the decision on this point should not be misun- 
 derstood. The court simply says, — the overseers making a rate in 
 the last half of a year are justified in using the facts of the first half 
 to form their opinion (which they must do to be in time for their 
 rate) as to what the facts in the last half would probably be ; but if 
 these facts, after the rate has been made, and the last half of the year 
 has been past, turn out differently to what the facts of the first half 
 had led them to suspect, then the real facts must be taken in heu of 
 the hypothetical ones ; but the decision does not say that some of 
 the facts of the first half are to be taken, and some of the facts of the 
 second half. This would have been the case if the overseers had dealt 
 with the receipts of the first half, and charged them with the costs of 
 the second half's working, this second half-year, from more stock 
 having been introduced, having most probably higher receipts of its 
 own. 
 
 The receipts of the last half should have been taken as well as the 
 expenses of the last half; that is, supposing the working of the last 
 half would have shown a materially different result to that of the 
 first. 
 
 A. M. 1852. The next case was that of the second Tilehurst (Great Western 
 
 Great Western Case), a parish situated on the Readiner and Hunserford branch. 
 Railway, » r do 
 
 second The decision in this case was given in 18-52. 
 
 The rate had been made on the 20th April, 1849. The litigants 
 must either have been dissatisfied with the decision given in 1851, or 
 must have considered it not sufficiently comprehensive. 
 
 In this case the respondents, the parish, having to do with a branch, 
 so far act upon the decision as to the parochial system as to make the 
 
45 
 
 parochial earnings the hasis of the assessment, and they apply the 
 earnings to arrive at the rateable value thus : — 
 
 They ascertain the rateable value of the whole concern, — line and 
 branches ; they take the gross receipts of the whole, and they say : — 
 As the gross receipts of the whole are to the parish receipts, so is the 
 rateable value of the whole to the rateable value in the parish. 
 
 The court say, that " in assuming that the rateable value upon the 
 " branch bears the same proportion to the receipts of the branch as the 
 " rateable value upon the trunk bears to the receipts upon the trunk, 
 " the respondents are wrong, and they therefore reject their principle." 
 
 The appellants adopt a different mode. They ascertain the gross 
 receipts over the whole system, and the gross expenses ; also the 
 receipts in the parishes ; and, as they cannot get at any actual expenses 
 in the parish, they estimate the expenses. 
 
 They deduct the expenses from the receipts in each case, and find- 
 ing the rateable value of the whole, they allocate that value in pro- 
 portion to the respective net profits of the whole and of the parish. 
 
 The objection taken by the court to this mode adopted by the 
 appellants was, that " in estimating the expenses in the parish, which 
 they were obliged to do to get at the ne_t profits, they had taken the 
 " entire expenses on the branch, and then divided them per length 
 " mile, adopting a mileage, which, though more limited as confined 
 " to the branch, was yet a mileage after all, and therefore incorrect." 
 
 The judgment concluded by stating that " the court are unable to 
 " adopt either of the modes suggested to them, and therefore the case 
 " must go back to the arbitrator." 
 
 This case, simply disapproving of two principles, which no one in 
 the present day would think of contending for, would be valueless, 
 and might have been omitted, but for the clear, sound, and able expo- 
 sition which Lord Campbell makes as to what the principle ought 
 to be. 
 
 His Lordship says : — 
 
 " The remaining question is, What is the net rateable value of the Lord Camp- 
 " two miles and a half ? Now as the net rateable value is that which *'^''' ^' "'• 
 " remains of the gross receipts after all just deductions mad.e, it might 
 " seem at first sight that we might confine our inquiry to the two 
 
46 
 
 General 
 outgoings 
 must be 
 apportioned 
 over the 
 whole line 
 of a railway. 
 
 Tunnel and 
 gradient. 
 
 Deductions 
 must be made 
 upon the 
 parochial 
 principle. 
 
 Proper method 
 of applying 
 the parochial 
 principle. 
 
 ' miles and a half, and that we only encumher the investigation use- 
 ' lessly by introducing into it any consideration of the gross and 
 ' rateable value of the whole line. But the circumstances of a rail- 
 ' way make this absolutely necessary. The inquiry may become, 
 ' and undoubtedly does become, more complicated and diificult 
 ' thereby ; but it would be wholly incomplete and illusory, even in 
 ' its result, unless we did so. Of the outgoings of a railway, some 
 ' are general, having no more connexion with, or influence on, one 
 ' part of the whole line than on any other, incurred for the sake of 
 ' the whole line, and contributing to the profits everywhere. Of 
 ' course these must be distributed, and to every mile must be appor- 
 
 ■ tioned some share, on whatever principle the apportionment is to 
 ' be settled. Some, again, seem purely local — a tunnel here, an in- 
 
 ■ clined plane there — yet even these are contributory to the 
 
 ■ earnings everywhere : without these, the traffic on either side could 
 
 ■ have no existence. It would be wrong to set these wholly and 
 ' exclusively against the receipts earned in the same part of the line. 
 ' We need not dwell on this, because, in principle, some distribution 
 ' is on all hands agreed to be necessary : the only difficulty is in 
 ' determining what is to be adopted for making it justly — a difficulty 
 ' we believe actually insurmOuntahle in fact, if strict mathematical 
 ' accuracy is insisted upon. How, then, are the deductions from the 
 ' total gross revenue, which constitute the difference between it and 
 ' the total net rateable value, to be apportioned, so as to arrive at the 
 'actual sum which constitutes the rateable value of the two miles 
 ' and a half? There is no difficulty in giving the first answer : it 
 ' must be done on what is called the parochial principle. We are 
 ' dealing with a parochial question, with one in which the interests 
 ■' of the several parishes on a line of railway are quite distinct. We 
 ' are to ascertain what expenses are incurred in earning the gross 
 ' receipts on the two miles and a half; what charges, parochial or 
 ' otherwise, they are liable to ; what is fairly to be deducted for 
 ' tenant's profits ; and so on : the same process in kind is to be gone 
 
 ■ through with regard to the two miles and a half as would be with 
 
 ■ regard to the whole line, if that were all in one parish. This prin- 
 
 ■ ciple does not preclude a consideration of charges and expenses 
 ' ivherever arising localh/, which are necessary for keeping the 
 
47 
 
 " subject of the assessment at the value which is made the measure 
 
 " of the assessment. And further, we must add that, wherever it is a mileage 
 
 " found that such charges and expenses do, in fact, equally apply to di^'sion is an 
 
 allowable 
 '' every mile of railway, it is a convenient and allowable mode to ,aodie oi 
 
 " arrive by a mileage division at the proportionable part to be assigned apportioning 
 
 " to the mile in any particular parish. This is no departure from the applicable 
 
 " parochial principle. If it be assumed, as to particular charges alike to every 
 :, , . , , , . / , . . part of a line. 
 
 " (' central supermtendence, tor instance), that a separate investiga- 
 
 " tion of them as they actually arise in, or are referable to, a parti- 
 
 " cular parish, would lead us to the same result as a mileage distribu- Mileage. 
 
 " tion of the whole, it becomes, by the hypothesis, but another mode 
 
 " of arriving at it : in many cases it may be more convenient and 
 
 " just ; in some, perhaps, it may be the only practicable mode." 
 
 The next case in the order of time was that of Req. v. iVew- 
 market Railway Company, judgment in which was given in 1854. 
 
 The Newmarket Railway Company were empowered by their Act •*• ^- ^*^*' 
 to make a branch railway to join that of the Eastern Counties, who. Railway, 
 in consideration of the probable increase of passengers on their own 
 line by their having the control of the Newmarket line, agreed to 
 supplement the net profits of the Newmarket Railway Company 
 as far as three per cent, upon the capital, or £5,000 per annum. 
 
 The net earnings of the Newmarket Railway not being sufficient 
 to pay the said dividend of £3 per cent., the Eastern Counties Com- 
 pany, in pursuance of their agreement, paid to them £3,705 to make 
 up the deficiency. Held (per Coleridge, J., and Erie, J.; dis., Lord 
 Campbell, C. J.), that in rating the Newmarket Railway Company 
 to the relief of the poor, the sum of £3,705 ought not to be taken 
 into consideration as increasing the rateable value, as it was not 
 an earning of the branch, nor money paid by way of rent for the 
 use of the branch, or springing from the profits of the occupation, but 
 a payment arising from a collateral contract of guarantee in case the 
 profits of the occupation should fall short of a certain amount. 
 
 The point raised in this case was decidedly that of contributive 
 value, viz. ■■ whether over and above the net profits of conveying- the 
 traffic over the Newmarket line the parish were entitled to take into 
 account the value of the occupation of the Newmarket line arising 
 
48 
 
 elsewhere by the profit got out of the same passengers between 
 Chesterf'ord and London, and which value the Eastern Counties 
 themselves had put at £3,705. 
 
 Mr. Justice Coleridge and Mr. Justice Erie ruled that they were 
 not entitled to take the amount supplemented by the Eastern Counties 
 into consideration. Lord Campbell ruled that they were, but as the 
 two other judges were of a different opinion, he gave judgment for 
 the appellants. 
 
 In the same year (1854) judgment was also given in the celebrated 
 Dorking case. 
 A. M. 1854. The Reading, Guildford, and Reigate line is a line running from 
 Guildford and ^^'^ste on the South Eastern, joining the South Western at Guild- 
 Reigate Line, ford, and terminating at Reading on the Great Western. Under 
 ing case, powers in their Act of incorporation, the Reading, Guildford, and 
 Reigate Company leased their line for 1000 years, at a yearly rent of 
 £41,000, to the South Eastern Company, who thenceforth became 
 the sole occupiers of, and carriers on, the line. The Reading, Guild- 
 ford, and Reigate Company was afterwards amalgamated with the 
 South Eastern Company, who were bound by the Act of Amalgama- 
 tion to pay the shareholders of the Reading, Guildford, and Reigate 
 Company, annuities equal to the rent of £41,000. The Reading, Guild- 
 ford, and Reigate hne brought a great deal of additional traffic 
 to the main line of the South Eastern Railway, and that com- 
 pany thus derived benefit from the Reading, Guildford, and Rei- 
 gate line, as a feeder to their main line, in respect of traffic con- 
 veyed on that Une. The Reading, Guildford, and Reigate line, if 
 in the market, might be an object of competition in consequence of 
 the rivalry existing between the South Eastern and other companies, 
 the traffic on whose lines would be increased by the possession and 
 control of it. The annual gross earnings on the Reading, Guild- 
 ford, and Reigate hne, less the proper deductions, fell short of 
 £41,000. The South Eastern Company being rated as occupiers of 
 BO much of the Reading, Guildford, and Reigate line as passed 
 through the parish of Dorking, upon a valuation founded upon the 
 said rent of £41 ,000, appealed against the rate. The points raised for 
 the opinion of the court were — 
 
 ]st. Whether the appellants were in the first rate properly assessed 
 
49 
 
 upon the rent agreed to be paid to the Reading, Guildford, and Rei- 
 gate Company, and in the second rate upon the perpetual annuity. 
 The court ruled unanimously that they were not properly so assessed. 
 
 2nd. Whether the appellants were liable to be assessed in respect 
 only of the net profits derived from the traffic passing through Dork- 
 ing, irrespective of any rent paid by the company, and of the value of 
 the Reading, Guildford, and Reigate line as increasing the traffic on 
 the main line. 
 
 3rd. Or whether the respondents are entitled to take into conside- 
 ration, in their assessment, the value of the line to the appellants, 
 as an integral part of the South Eastern Railway, in addition to the 
 net profit, as derived from the traffic passing through the parish of 
 Dorking ? 
 
 The court (with the exception of Mr. Justice Erie, who dissented,) 
 consisting of Lord Campbell, Mr. Justice Coleridge, and Mr. Justice 
 Crompton, ruled that the South Eastern Company were properly as- 
 sessable, in respect not only of the net profits derived from the traffic 
 passing through Dorking, but also in respect of the rent paid, and the 
 Talue of the Reading, Guildford, and Reigate lineto them, as an integral 
 part of their railway, and as increasing the traffic on their main line. 
 
 It may be remarked here, that Mr. Justice Erie, the only dissen- 
 tient from this judgment, is merely maintaining the same opinion he 
 had expressed in the Newmarket case (a), where the court (himself and 
 Mr. Coleridge as a majority) strictly confined the Newmarket branch 
 to its own profits, and that Lord Campbell, who was then a dissen- 
 tient, is only maintaining his previous opinion also, but that Mr. 
 Justice Coleridge seems to have changed his opinion upon the subject 
 since the Newmarket case, as he is now supporting the view of Lord 
 Campbell, whereas he differed from him in that case. 
 
 This decision has never since been disturbed. Contributive value, 
 as for convenience sake we will call that value, which (over and above 
 the value of the net profits of a branch) may be attached to a branch 
 by reason of its connection with a main line, seems by his decision 
 to be fully recognized as a principle. Subsequent decisions have, in 
 fact, confirmed it. 
 
 (a) 3 E. & B. 94 ; 23 L. J. (N. S.) M. C. 76. 
 E 
 
00 
 
 It is considered by some persons that the court, in recognizing the 
 principle of contributive value, are " breaking in upon the parochial 
 " system, inasmuch as it goes further than any other (decision) 
 " towards importing into the rateable value profits not strictly refer- 
 " able to the parish ;" but this is certainly not Lord Campbell's 
 opinion, for he says in his judgment in the Newmarket case (a) — 
 
 " The railway within the respondent's parish is rendered more 
 " valuable and productive by something connected with the rise of it 
 " in another parish, and, according to decided cases, its rateable value 
 '■ rvithin the respondent's parish is thereby enhanced within (not out- 
 " side) the respondent's parish." And, in conclusion, to prevent mis- 
 takes, he adds — " 1 wish to adhere to the recent as well as the earlier 
 " cases on this subject, with this caution, that when we were deter- 
 " mining, that in rating railways, the parochial, not the mileage 
 " principle was to be adopted, the court did not mean to intimate 
 " that the assessable value of land in one parish ought not to be in- 
 " creased by a profit derived from it by the occupier, as occupier, in 
 " consideration of an advantage derived from it in another parish." 
 Lord Campbell evidently considers the contributive principle per- 
 fectly compatible with the parochial, when, in his judgment, in the 
 second Tilehurst case, although affirming that the deductions must be 
 parochial as well as the receipts, he says — " Of the outgoings of a 
 " railway, some are general, having no more connection with, or influ- 
 " ence on, one part of the whole line than on any other, incurred for 
 " the sake of the whole line, and contributing to the profits else- 
 " where ;" he distinctly recognizes this fact, that expenses incurred 
 outside a parish may affect the share within the parish, in other 
 words, as my friend Mr. Francis Guise says, " No class of expenses 
 " are properly to be regarded as local." If this is so, surely, by 
 parity of reasoning, the receipts for the conveyance of traffic over 
 trunk line and branch together are not necessarily to be divided on a 
 mileage principle, but parochially, upon the respective portion of the 
 entire fare that the company may have adopted as between the trunk 
 and the branch when they settled that entire fare (i), that division 
 
 (a) Vide supra, p. 49. 
 
 (J) See Reg. v. North London Railway, (St. Pancras case,) 32 L. J. 
 (N. S.) M. C. 146, and the division of tlie fare between the Blackwall Com- 
 pany and themselves. 
 
61 
 
 of the entire fare being necessarily based upon the profits that in 
 either case would be obtained out of it upon the trunk, as compared 
 with those upon the branch. 
 
 The next cases were those of Reg. v. Overseers of Fletton{a), 
 and Reg. v. North Staffordshire itailrvay (b), decided in 1861 ; 
 and Reg. v. Lord 8herrard{c), decided in 1864. 
 
 In the case of Reg, v. Overseers of Fletton — 
 
 In the year 1848, the old Peterborough station belonging to the 
 Great Eastern Railway Company, by whom it was built, and by 
 whom alone it was first occupied, in the parish of Fletton, the 
 London and North Western entered into an agreement, by deed, 
 with the Great Eastern Eailway Company, by which they bound 
 themselves, in return for the user of a certain portion of the Great 
 Eastern Company's line, and of part of the station premises, to pay 
 annually the following rent and expenses, viz. : — 
 
 First. — Such a sum as shall be equal to one mile's gross earnings, 
 after deducting £40 per cent, thereof, to cover all expenses for each 
 year upon that portion of the London and North Western Railway 
 which lies between the Peterborough and Silson stations. Second. — 
 Such sum annually as shall be equal to £5 per cent, per annum upon 
 the costs of the land and buildings to be occupied exclusively by the 
 London and North Western Railway Company. Third. — Such sum 
 annually as shall be equal to £7 per cent, per annum upon one-half 
 of the outlay of the station and buildings jointly used by the said two 
 companies, with the exception of land, and as shall be equal to £5 
 per cent, upon the land occupied by such jointly used station and 
 buildings. Fourth. — One moiety of the expenses of the management 
 and conduct of the said joint station. Fifth. — That the London and 
 North Western Railway should keep in repair so much of the said 
 station and buildings as they should exclusively occupy^ and should re- 
 pay the appellants all the outlay they had made on internal fittings. 
 Sixth. — That the Eastern Counties should keep in repair, at their own 
 
 (ffl) 30 L.J. (N.S.) M.C. 89. 
 (fi) 30 L. J. (N. S.) M. C. 68. 
 
 (c) 33 L. J. (N. S.) M. C. 5. The rule was obtained in 1861, but judg- 
 meut was not given till 18G4. 
 
 E 2 
 
6-2 
 
 expense, the station and buildings to be jointly used, and should conduct 
 the affairs and business of the station, and should deliver an account 
 half-yearly of the expenses of management. Seventh. — That the re- 
 ceipts for the through passenger and goods traffic between Peterborough 
 and London, whether passing over the Eastern Counties or the London 
 and North Western Railway, should be equally divided every half 
 year, and separate accounts should be kept, and to the company who 
 should carry the largest amount of passenger traffic the sum of £10 
 per cent, should be -allowed upon the excess over that of the other 
 company, and £20 per cent, upon the excess of goods over that traffic 
 of the other company. 
 
 Up to the year 1850 a large traffic was carried to London by the 
 appellants. The station was laid out to accommodate it. The traffic 
 was brought up to the appellants' line at Peterborough by the Great 
 Northern Railway (which did not then extend towards London further 
 than Peterborough), by the Midland Railway, and by the London and 
 North Western Railway. In 1850 the Great Northern line was 
 opened to London by a route shorter than that of the appellants' by 
 twenty-six miles. Immediately upon this opening all the passenger 
 and a great portion of the goods traffic was diverted from the Eastern 
 Counties to the Great Northern Company. In 1857, by the opening 
 of another Hue, the appellants lost the traffic which was brought to 
 them by the Midland Company. In 1858 there was another similar 
 loss, and since that year, with the exception of coals, the traffic at 
 Peterborough, of all kinds, so far as the appellants are concerned, has 
 been entirely confined to short local traffic. For the purpose-of such 
 traffic an ordinary road side station would have been sufficient, and in 
 consequence of this diminution in the traffic, a large repairing shop 
 and other building-s at the station were taken down, and others were 
 allowed to fall into decay. Between Peterborough and Ely, to which 
 branch the station in question belonged, the traffic was so small that 
 the branch was worked at a loss by the appellants. There was a great 
 competition for the coal traffic between the companies, and the rates 
 were low. The buildings were, at the time of the rate in question, 
 used for other purposes than those they were intended for. To an 
 ordinary tenant, for any other purpose than that of a railway, the 
 station would have been of no annual value, if he had been bound to 
 maintain the buildings in a state of repair. 
 
53 
 
 At the time of the appeal the annual value of the station, as used 
 for the purposes of a station, after making' all deductions, was esti- 
 mated by the appellants at £63-3, but they, in estimating the said 
 rateable annual value, did not take into account the said annual sum 
 received by the appellants from the London and North Western Rail- 
 way, under the agreement. 
 
 The question for the court was, whether the sum of money payable 
 to the appellants, under the agreement of 1848, by the London and 
 North Western Railway, ought to form part of tlie rateable value of 
 the station. 
 
 Judgment. 
 
 After recapitulating the facts of the case, the Lord Chief Justice 
 proceeds : — 
 
 " The fallacy in the argument in favour of the appellants consists 
 " in looking at the London and North Western Company as the occu- 
 " piers, and in considering what a tenant from year to year, coming 
 " in their place, would pay as rent for the use of the station. 
 
 " But the London and North Western a.re not occupiers of the station 
 " at all, they have only an enjoyment by way of user, in other words 
 " an easement. The occupiers are the Eastern Counties Company, sub- 
 " ject to the easement of the other company, and the true question is, 
 " what would a tenant, coming into the place of the Eastern Counties 
 " Company, give for such an occupation ? Now, it is plain that a tenant 
 " coming into their place, in considering what rent he would give, after 
 "the necessary deductions, would take into account, as increasing the 
 " value of the premises, the amount to be annually paid by the London 
 " and North Western for their use of the station. It is true the Eastern 
 " Counties, if they were to let the station, though they could of course 
 " only let it subject to the right of the London and North Western Rail- 
 " way to use it, might, taking a lower rent from their immediate lessee, 
 " reserve to themselves the receipt of the amount annually payable by 
 "the London and North Western Railway. Whether, under such cir- 
 " cumstances, they would or would not still remain liable as occupiers, 
 " quoad a moiety of the line, the London and North Western Company 
 " having only an easement therein, it is unnecessarry to decide." 
 
 It is sufficient, in our opinion, for the present purpose, to say that 
 " rebus sic stantibus" they are assessable to the full amount of what 
 " they receive." 
 
54 
 
 "The true principle according to which the value of the occupation 
 " to the hypothetical tenant contemplated by the Parochial Assessment 
 "Act is to be estimated, is to assume the continuance of those circum- 
 " stances which constitute the value to the existing occupier, unless it 
 " be made to appear that those circumstances are about to undergo a 
 " change. But there is nothing in the present case to lead to the sup- 
 " position that the Eastern Counties Company will either forego their 
 " right, under a very advantageous agreement, which is to bind the 
 " London and North "Western Company to a very remote future, or that 
 " the Eastern Counties Company will either let the station to any other 
 " occupier, or,if they do, will place such occupier, relatively to the other 
 " company, in a different position from that in which they themselves 
 " stand. At present, the Eastern Counties Company, as occupiers of 
 " this station, derive a profit, not only from their own use of the station, 
 " but also in respect of a sum annually paid by the London and North 
 " Western Company, and they ought in justice to contribute to the local 
 " burden in proportion to the entire benefit which they derive from the 
 " occupation, and we think that they fail legally, as they certainly do 
 " morally, in the attempt to withdraw themselves from such fair and 
 " equal contributions.'' 
 
 This judgment was sought to be revised in Reg. v. Lord 
 Sherrard («). 
 
 On the 24th May, 1861, a rule was obtained on the part of the 
 overseers of the parish of Fletton, calling on Lord Sherrard and 
 another, justices of the peace of the county of Huntingdon, to show 
 cause why they did not issue their warrant of distress for two poor's 
 rates assessed on the Eastern Counties. The rule was, by consent, 
 enlarged in order to obtain the opinion of the court of Queen's Bench. 
 
 The case stated for the opinion of the court was similar to that in 
 the first Fletton case, except that all the facts in that case were more 
 fully set out and enlarged upon, and a fact found in error in the first 
 case was corrected in this. The first case stated that the Eastern 
 Counties were in occupation of the greater part of the station, and for 
 the purposes of the case might he deemed to be the persons rateable 
 in respect of the whole of it ; the second case corrected this, for the 
 London and North Western were now stated to be in the exclusive 
 occupation of some part of the Peterborough Station, for which they 
 
 (o) Vide supra, p. 61. 
 
were liable to be rated as occupiers. The Midland Counties had also 
 the exclusive use of a goods shed and locomotive shed, but their tmicks 
 are worked to and from the goods shed by the servants of the Eastern 
 Counties. 
 
 The goods and locomotive sheds occupied by the Midland are kept 
 in repair by the Eastern Counties, while those occupied by the London 
 and North Western are kept in repair by themselves. The agreement 
 to use between the Midland and the Eastern Counties is not in writing, 
 while that of the London and North Western is, and under the seal 
 of the companies. 
 
 The questions for the opinion of the court were : — 
 
 1st. Whether the Eastern Counties were, for the purposes of rating, 
 the occupiers of the whole or some, and what part of the station ? 
 
 2nd. Whether the North Western were, for the purposes of rating, 
 occupiers of some, and what part of the station ? 
 
 3rd. Whether the Midland were occupiers of some, and what p'art 
 of the station ? 
 
 4th. Whether both, or which, or what portions of the sums pay- 
 able yearly by the North Western and the Midland, respectively, were 
 to be considered as part of the value of the occupation by the Eastern 
 Counties with reference to the amount at which they were to berated? 
 
 Judgment. 
 
 Judgment was delivered by Cockburn, C. J., in the following 
 words : — 
 
 " We have looked to this deed, and we adhere to the opinion which 
 " we formed the first time this question was befoie us. The effect of 
 " the deed is simply to give the right to the use of the station to the 
 " North Western Company, without taking the occupation out of the 
 " Eastern Counties Company. The latter are the occupiers, and must 
 " be rated for so much of the station as remains after what Mr. Keane 
 " (counsel for the prosecutors) gave up as being in the exclusive occu- 
 " pation of the North Western Company ; and as to these buildings, 
 "&c., the rate must be amended, but as to the residue, of which the 
 " North Western Company have the use by the terms of the deed, we 
 " are of opinion that the. occupation is in the Eastern Counties Com- 
 " pany, and, therefore, as to that, the rate will stand." 
 
56 
 
 In this judgment, the answer to the first and second question is — 
 The Eastern Counties are occupiers of the whole station except that 
 which by deed is in the exclusive occupation of the London and 
 North Western, themselves and servants, and is maintained by 
 them, and which it was admitted by counsel, in the first case, should 
 be rated to the London and North Western. 
 
 The answer to the third question (no reference was specially made 
 to it in the judgment) seems by implication to be, No. The Midland 
 are not occupiers, they are simply users. 
 
 To the fourth question no precise answer was required. It would 
 of necessity be that amount which the London and North Western 
 had agreed to pay for the use of that part of the station of which they 
 had not the exclusive occupation, and the entire sum paid by the 
 Midland, who had no exclusive occupation of any part of the station 
 at all. 
 
 It appears from this judgment, and from the words used by 
 Chief Justice Cockburn in delivering his first judgment in the 
 Fletton case, that rent (a) received for an easement or partial occu- 
 pation, must become a portion of the rateable value, but the rent 
 paid for an entire occupation need not necessarily be so. It might 
 or might not, according to whether that rent was reasonable or not. 
 If no rent is paid for an easement, but another easement is given in 
 exchange, as in the case of the Brighton and South Eastern Eailway 
 Companies in the Croydon case (J), where no money passed and no 
 toll was paid, then the value of the respective easements must be cal- 
 culated and assessed to the respective companies that granted them. 
 
 A M 1864. Another case, having reference to the same question, viz., — that 
 Beg. V. Mid- of dealing with easements, or a partial occupation by railway com- 
 iBQd Railway, pj^^jgg ^f gac]j other's lines, was decided in the same year, 1864. It 
 
 was Reff. v. Midland Mailmay Company, ex parte the Overseers of 
 
 Badgrvorth (o). 
 This case very much resembles the London, Brighton, and South 
 
 Coast Croydon case. The line, in that case, between Croydon and 
 
 (o) The reasonableness of the amount having nothing to do with it. 
 (6) 16 Q. B. 344; 20 L. J. (N. S.) M. C. 137. 
 (c) 34 L.J. (N.S.)M. C. 25. 
 
67 
 
 Reigate being part occupied by the Brighton, and part by the South 
 Eastern, each company, by agreement, exercising their running 
 powers over the other without payment of toll. 
 
 In this case the power is exercised under parliamentary enactments. 
 The case states that the railway between Cheltenham and Gloucester 
 was made under the Act 6 Will. 4, c. 77. It was intended to be 
 broad guage throughout, but i^ow it is of mixed guage, the broad 
 guage being used by the Great Western, the narrow, by the Midland. 
 The Act provided that the railway should be constructed of the mixed 
 guage, and that on payment to the promoters, by the Birmingham 
 and Gloucester Company, of one-half of the cost of making the whole 
 railway, the one-half nearest to Gloucester should thenceforward be 
 held in trust only for the Birmingham and Gloucester Company, 
 whose powers should extend to it ; and thenceforth the Birmingham 
 and Gloucester Company obtained the sole direction of the railway, 
 and became empowered to collect the tolls and profits, being bound 
 at the same time to repair and maintain it. The Birmingham and 
 Gloucester Company becoming amalgamated with the Midland, this 
 half of the Cheltenham and Gloucester became the property of the 
 Midland, and the other half nearest Cheltenham became amalgamated 
 with the Great Western, and the whole line has been worked by 
 both broad and narrow guage trains, the nigh rail of each road being 
 used by both broad and narrow guage trains. The parish of Badg- 
 worth is upon the half nearer Cheltenham, which belongs to the 
 Great Western, and which the Great Western maintain. 
 
 The overseers of Badgworth considered there was a joint occupa- 
 tion, and rated both companies. The Midland Company appealed, 
 and contended they were not liable, and that they had only an ease- 
 ment. The two companies divided the entire cost of making the 
 railway equally between them, but the traffic of the Midland over 
 the Gloucester is much greater than that of the Great Western, who 
 brought an action to recover tolls for the same. The House of 
 Lords finally decided that neither company could claim tolls of the 
 other. 
 
 The question for the court is, — Are the Midland rateable for their 
 traffic over the Cheltenham half in the parish of Badgworth 1 
 
 The judgment of the Court was that the Midland had only an 
 easement, and were not rateable, that the Great Western were the 
 
58 
 
 Sole occupiers, and that they were rateable for their own traffic, 
 and also for the value of the user by the Midland. The judgment 
 delivered by Chief Justice Cockburn, and that by Mr. Justice 
 Crompton, disposes most conclusively of the matter. In this 
 judgment Chief Justice Cockburn seems to make the maintenance 
 of the road the proof of ownership. He says, — " Another matter is 
 the case of repairs. In the common case where the right to the soil 
 is in the persons using the road, they have a right in it themselves, 
 as incident to the right to the soil, to do anything that is necessary 
 for the repairs of the road, &c., &c." Further on, he says, — " It is 
 " almost admitted by Mr. Dowdeswell, that if the Midland Company 
 " paid tolls, the occupation would be in the Great Western." They 
 did pay tolls for some time till the House of Lords decided that having 
 shared the entire expense of construction between themselves and the 
 Great Western for the privilege of using the railway, each company 
 was at liberty to use the whole railway to any extent they pleased 
 without payment of tolls to the other, but that the non-payment or 
 non-liability of tolls to each other for the respective easements were 
 not to deprive the parishes of such a rateable value, chargeable upon 
 the company in occupation, as might belong to the value of the ease- 
 ment to the company using. In fact the Great Western and Midland 
 are rateable as follows : — 
 
 Great Western is rateable for traffic of Great Western + tolls of 
 Midland. Midland is rateable for traffic of Midland + tolls of Great 
 Western; and, consequently, between Gloucester and Cheltenham, 
 the Rateable value of (traffic of Great Western + tolls of Midland) := 
 Rateable value of (traffic of Midland + tolls of Great Western). 
 
 The decision in this case is worthy the consideration of railway 
 companies granting running' powers over their line to other 
 companies. 
 
 They must not forget, in arranging the terms, that they them- 
 selves will have to pay rates upon the profits of the easement as 
 well as their own. 
 
 The fact of their receiving no tolls, as in this case, and in that of 
 the Brighton Company at Croydon, will not save them from being 
 rated for such amount of toll as the traffic of the using- company 
 would fairly admit of. It is, however, somewhat difficult to under- 
 
59 
 
 stand why a company should be rated upon a settled amount of toll 
 agreed to be in excess, and yet should not be rated upon a deficient 
 toll, although the amount of toll might be also settled. The Badg- 
 worth and the Croydon cases are scarcely reconcilable with the 
 Fletton. 
 
 In this last case the fixed toll is to be the measure of the easement 
 value, though the traffic is falling off. In the first two the fixed toll 
 is nil, and yet the measure of the easement is to be based upon the 
 traffic ; suppose the fixed toll had been half what the increased trafBc 
 would justify, is the rateable value of the easement to be the fixed, 
 or twice the amount? If the fixed, then companies could make 
 any arrangements between themselves, only taking care to put some 
 toll upon each other ; and, if what the toll ought to be, how can this 
 be reconciled with the decision in the Fletton case ? 
 
 Having concluded the cases, which, beginning with the Pletton 
 case in 1861, and terminating (at present) with the Badgworth case 
 in 1864, we will turn back to the Rushton Spencer case (a), Reg. 
 V. The North Staffordshire Railway Company, a case decided 
 in 1861. 
 
 The questions raised for the decision of the court were questions 
 principally concerning tenant's capital — what it included, and how 
 it was to be estimated. The company being at once landlord and 
 tenant, has invested in both landlords' and tenants' fixtures ; the 
 former would be rateable with the land, the latter would have to be 
 purchased by the imaginary tenant, who would look for the usual 
 allowances upon the amount. The first question would be, what are 
 landlords, and what are tenants? Having settled what were and 
 what were not to be taken by the tenant, the next question would 
 naturally be, — Is the amount upon which the allowances are to be 
 calculated, to be taken at the original cost of the stock when new, 
 or at what it would be worth to sell at the commencement of his 
 tenancy ? 
 
 It might have been supposed that this first question had been 
 settled in the Southampton case (5), and that the second question had 
 
 (o) 30 L. J. (N. S.) M. C. 68. 
 
 (6) 15 Q. B. 313 ; 20 L. J, (N. S.) M. C. 155. 
 
60 
 
 also been disposed of in the Great Western case (first Tilehurst) (a). 
 It is stated in tlie head notes of the Southampton case, that 
 " attached to the freehold, and essential to the business of the 
 " company, was certain fixed plant, consisting of cranes, steam 
 " engines, shears, derricks, dolphins, and other like ponderous 
 " machinery, which, however, was capable of being detached as 
 " easily, and with as little injury to the freehold, as tenant's fixtures, 
 " put up for the purposes of trade and business, and usually valued 
 " as between incoming and outgoing tenants," and the judgment 
 says, — " fourthly, that the cranes, steam engines, and other pon- 
 " derous machinery were properly included in estimating the rateable 
 " value of the company's premises." 
 
 And in the Great Western case, it is stated that, " in ascertaining 
 " the tenant's profits, the rate had been made on a calculation of the 
 " per centage on the original value of the moveable stock, but the 
 ' ' sessions found that at the time of the rate being made, that the value 
 " had decreased. The respondents contended that the per centage 
 " should be taken on the decreased, and not on the original value, 
 " and it was held that it ought to be taken on the decreased value." 
 
 Still it was a serious question for the railway company, as the 
 efifect of establishing the principle that the turntables, cranes, 
 weighing-machines, lathes, &c. were rateable, would be, not only to 
 increase the rateable value of their property pro tanto throughout the 
 line, but also to lose to them the deduction from the entire rateable, 
 that the allowances upon the fixed and other machinery could give 
 them, were they made a portion of the plant to be taken by the tenant. 
 
 The decision in this case as to this question was so entirely con- 
 firmatory of that in the Southampton Dock case, that one would 
 have considered the question finally disposed of (c.) 
 
 A recent decision {Reg. v. Overseers of Hahtead (J) in 1866) 
 appears, however, to railway companies, to be so conflicting with these 
 decisions as regards some of the items herein enumerated, that it is 
 doubtful whether the question in a more special form will not be 
 again raised before the court of Queen's Bench. 
 
 The facts in the North Staffordshire case were these, the rolling 
 
 (a) 6 Q. B. 179 ; 15 L. J. (N. S.) M. C. 80. 
 
 (6) 31 Justice of Peace, 373. 
 
 (c) 15 Q. B. 313; 20 L. J. (N. S.) M. C. 155. 
 
61 
 
 stock of the company had originally cost £356,843, and the turn- 
 tables, cranes, weighing-machines, stationary steam-engines, lathes, 
 electric telegraph and apparatus, office and station furniture, and gas 
 works used for supplying the stations with gas, £52,950, but the ses- 
 sions found that the rolling stock, which had cost £356,843, was only 
 worth at the time of the rate, £285,843. The court of Queen's Bench 
 held that the amount to be taken for rolling stock should be £285,843, 
 not £356,843, and that out of the sum of £52,950, only what was 
 due for office and station furniture, &c. (and they might have added, 
 tools and stores, but in this case they do not appear to have been 
 claimed by the company) should be taken as further tenant's capital. 
 
 There was another question, viz., — " Whether the tenant was not 
 " entitled to add something for floating capital?" "Yes," the court 
 " held, jf it was necessary for him to have it," hut the court has no 
 means before them of determining, whether in this case it is necessary 
 or not. To another question stated to the court, and a most important 
 one, the court neither gave any reply, nor enunciated any principle. 
 The point raised as stated was, — " Fourth, whether the deductions to be 
 allowed in respect of the station, buildings, and sidings, should have 
 been ascertained by taking the rateable value at which the same were 
 assessed to the relief of the poor, or by allowing 6 per cent, upon the 
 original cost of construction as contended for by the appellants, or 
 how otherwise a deduction should be made in respect of the said 
 stations, buildings, and sidings?" The above was the question; the 
 judgment was, " We are of opinion the deduction to be allowed in 
 respect of the station, buildings, and sidings, must be calculated on the 
 actual value at which they ought to he assessed, and not on the 
 original cost of construction." This is no answer to the question, the 
 question being simply, how ought the stations to be assessed, or how 
 is the actual value to be arrived at ? 
 
 A similar question was put in the Great Western case (the first 
 Tilehurst) {a). "Fifthly, additional parochial assessment not paid, but 
 " which will be payable in consequence of the decision of the court 
 " on rating railways." The claim was so unsatisfactorily put, that 
 the court said the sessions would have been perfectly justified in 
 not allowing it to stand part of the case. In that case also, there- 
 fore, the question was not answered. 
 
 (a) 6 Q. B. 179 ; 15 L. J. (N, S.) M. C. 80. 
 
62 
 
 It seems doubtful whether the question has ever been properly put, 
 or whether it has even been clearly understood ; the real point at issue 
 being this : — 
 
 The railway passes through all the parishes; the stations are situated 
 in a few only. Having got the value of the whole, due for line and 
 stations, you must deduct what is due for stations to give to the 
 parishes where the stations are, and then apportion the line; but 
 what are you to deduct, the actual assessments of the stations as thej- 
 appear in the rate-books of the several parishes, not two perhaps 
 valued on the same principle or upon the same scale, or the assess- 
 ments as they ought to be, and then, if so, what ought they to be ? 
 What is the principle upon which any one station should be assessed ? 
 The company contended in the Staffordshire case that 6 per cent, 
 should be taken upon the cost, the court merely replied, " No ; it should 
 be valued properly," but did not say how. The answer seems, how- 
 ever, to have been since given in the West Middlesex case (a), and 
 afterwards directly and indirectly confirmed in other cases. This, 
 however, will be all fully gone into when these cases come under 
 consideration. 
 
 A. M. 1863. The next case desirable to mention is that of the North London 
 
 North London, Railway Company v. The Parish of St. Pancras, decided in 1863 (b). 
 
 This also is a question of toll between one company and another, 
 
 though in this case instead of that portion of the line for the use of 
 
 which the toll was received being under assessment, it was the line 
 
 belonging to the company who paid the toll. 
 
 The case may be shortly stated thus : The North London Eailway 
 Company work over the Blackwall Railway to Fenchurch Street ; 
 out of the gross fare received for travelling over the North London 
 Railway and the Blackwall Railway, the North London Railway 
 Company pay to the Blackwall Railway Company Id. each single 
 fare, and 1 id. each return fare. In ascertaining the parochial earn- 
 ings over the North London Railway, should the tolls of Id. 
 and Hd. payable to the Blackwall Railway Company be deducted 
 from the entire fare, and the remainder be spread over the distance 
 the passenger had travelled upon the North London Railway, or 
 
 (a) 28L. J. (N.S.) M. C. 135. 
 (6) 32L. J. (N. S.) M.C. 146. 
 
03 
 
 should the toll paid be disregarded, and the whole fare be spread over 
 the entire distance travelled and divided according to the distance 
 upon the North London Railway and the Blackwall Railway respec- 
 tively? The court held that the toll should be deducted first, and the 
 remainder only be spread over the North London Railway. 
 
 The point really at issue between the company and the respondents 
 seems never to have been raised, owing to the arbitrator having 
 found as a fact in the case, that the sum paid by the North London 
 Railway Company was a reasonable sum. The respondents con- 
 tended that this was not the case, that the sum was in excess, 
 and, being in excess, that it ought to be ignored altogether, and 
 that a fair sum only should be allowed to the Blackwall Rail- 
 way Company, such as the North London Railway, looking at 
 the amount of the entire fare, could afford to give them. The court 
 held, that the \d. and l^d. agi-eed to be paid were to be deducted. 
 Did the court do so because the arbitrator had found the amounts 
 reasonable, or did they ignore that finding altogether? If they 
 ignored it, then this case estabUshes conclusively that the entire or 
 through fare agreed to be given to any company, reasonable or other- 
 wise, binds both companies as a question of assessment. 
 
 If they did not ignore it, and the court only made the agreement 
 binding, upon the fact that the division of the entire fare was a rea- 
 sonable one, then the question still remains open, — Would the court 
 have come to that conclusion had the reverse been found? that is, 
 had the arbitrator found that the toll of \d. and l^d. was in excess. 
 
 If the court should, were the matter again brought before them, 
 come to the same conclusion, that the share of the entire fare, though 
 found by the case to be in excess, was to be deemed binding, and 
 should be first deducted, then why should it not equally be so, if too 
 low ? and if so, when too high and when too low, why not when 
 nothing at all ? The rent payable to the Reading, Guildford, and 
 Reigate, re Dorking, was not taken absolutely, neither was the rent 
 payable by the Great Western for its two branches ; nor that by the 
 Eastern Counties for Newmarket. Would not, then, those decisions 
 at once clash with this ? The only difference between this and those 
 cases being, that rent, including numbers of passengers, and rates of 
 passengers, will, if fixed, fix both ; while toll per passenger, or share 
 of the through fare, fixes only one. The conclusion, this being the 
 
64 
 
 only difference, one can but come to is this, — that companies can 
 agree between themselves as to their respective share of the through 
 fares or rates per passenger ; and that agreement is binding upon 
 parishes for rating purposes ; but, though they may agree as to the year's 
 rent or toll they shall pay each other, that rent or toil, though agreed 
 to, is not conclusive for purposes of assessment, because it includes both. 
 
 A. M. 1863. In the year 1863, the question of contributive value was again 
 Cannock Case, raised in the Cannock case, London and North Western v. Overseers 
 of Cartrtoch (a). 
 
 The Cannock Chase Line, is a short railway, 7| mUes, branching off 
 from Rugely on the London and North Western. It is purely a coal Une. 
 
 The line fi-om its opening was worked and repaired by the London 
 and North Western, who held it under lease at a yearly rental in 
 perpetuity of £5500. 
 
 The case stated that the local working expenses were more than 
 the local parochial receipts, and that therefore the line was worked at 
 a local loss ; but it also found that the line formed a link in the appel- 
 lants' system of railways, which it was very desirable for the appel- 
 lants to secure, from the traffic it would bring upon their other Unes, 
 and from the means it would offer of keeping out other companies 
 from the district. Passengers, minerals, and goods were conveyed 
 over the Cannock Branch, also over the trunk and other lines, at 
 through rates and fares, the purely local traffic being comparatively 
 nil. Consequently the Cannock Line contributed considerable addi- 
 tional traffic to the main line; lut the appellants mere rated in respect 
 of that in the different parishes rehere the profit upon it arose {V). 
 
 The Cannock Line was worked as part of their general system. 
 
 The question for the opinion of the court was, the local expenses 
 being greater than the local receipts, " should the line be rated at 
 " agricaltural value iOs. per acre or upon something more, and if so, 
 " upon what principle ? " to be referred to an arbitrator, to apply. The 
 answer of the court was : — " It has a value above the 40.?. ; " but what 
 that value is, and how it is to be arrived at, the court leaves to the 
 arbitrator, who " is to ascertain what, taking all its advantages into 
 " consideration, is the (rateable) value of the branch line in the res- 
 
 (ff) 9 Law Times, N. S. 325. 
 
 (b) This fact so found must not be lost sight of in considering the decision. 
 
65 
 
 " pondeiits' parish to the appellants?" The observations of the learned 
 judfres in the course of the arg'uments by counsel, indicate veiy clearly 
 the train of thought that was passing in their minds, and show un- 
 mistakeably that they all felt there was a value belonging to the 
 branch from the additional traffic it would secure to the main line, 
 and that that value could not really have been lost because the branch 
 line had been leased in perpetuity. 
 
 Mr. Justice Blackburn says, " what would be the elements of the 
 "rent, why, amongst others, the capacity to add to the takings of the 
 "main line." 
 
 Chief .Tustice Cockburn says, " rent is prima faoie evidence of 
 " value — suppose, at this moment, there was no lease, and the appel- 
 " lants wanted to take it, what is the rent they would give ? they 
 " would arrive at that by this process, what is the traffic on the 
 " branch ? what are the expenses ? what are the profits it would 
 " produce to the main line? with some other considerations." 
 
 Jn other words, what shall we lose on the working of the branch ? 
 what shall we gain upon the main line, in working the traffic it will 
 bring? and what rent can we affiard to pay for the excess of the gain 
 upon the main line over the loss upon the branch ? 
 
 In the same year, 1863, another case came on for hearing before the Eastern Couu- 
 court of Queen's Bench, called the Amwell case. Beg. v. The Eastern '^^''' ■^'??'®'^ 
 Counties Railway (a). 
 
 It was a question affecting the gocfds receipts of a railway, what 
 they were, and how they should be arrived at. To understand the 
 question at issue, a few observations here may be useful. There are 
 two classes of goods conveyed over a railway, one at carted fares, the 
 other at non-carted fares. The first involve three sorts of services, 
 the second but two. The fare charged in each case is a gross sum, 
 not distinguishing between what is charged for each service. The 
 three services included in the carted fares, are the transit, or con- 
 veyance from one place to another ; the station, or terminals, in load- 
 ding, packing, unpacking, shunting, distributing, &c., these are all 
 done within the station ; and carting the goods at either end, which 
 is done outside the station, 
 
 (a) 4 Best & Smith, 58j 32 L. J. Rep. (N, S.) M. C. 174. 
 
6& 
 
 The non-carted fares consist of the first two. The second class of 
 service only is correctly called terminals; the term unfortunately 
 has been considered to include both, terminals properly so called, and 
 cartage ; and this appears to have been the meaning attached to it in 
 the present case, no distinction having evidently been made then ; 
 the total goods and passenger charges over the parish are stated to 
 be £6036, and the terminals (a) £2829 ; the terminals, properly so 
 called, could not have amounted to that sum, though increased by the 
 cartage outside, it probably did. There is nothing in the case to show 
 that the court understood the sum to include the outside cartage, 
 though, inferentially much, that they considered it represented inside 
 services. As between the company and their customers, there being 
 no need to distinguish the charge made for each class of services ; 
 the charge is made simply at so much per ton. 
 
 The above, however, only holds true as long as the traffic is con- 
 fined to one line of railway, when it is all what may be called home 
 or local traffic, for when companies forward goods as they do over 
 each other's railways there are two other classes of traffic which have 
 to be considered, "foreign," not " home," and " through," in which 
 the subdivision of the entire fare becomes necessary. Foreign traffic 
 is that, where goods received by one railway are consigned to a sta- 
 tion of another railway adjoining, and through traffic is that where 
 goods are conveyed over a third railway lying between the receiving 
 and delivering railways, the traffic over the intermediate railway is 
 called through traffic; the traffic over the receiving and delivering 
 railway is called foreign traffic. In all traffic there are two terminals, 
 one at each end. As regards any railway, local traffic includes two 
 terminals ; foreign traffic, but one, and through, none. It is clear, 
 therefore, that as regards both foreign and through traffic, the gross 
 fare must be divided. A company, called the Clearing House Asso- 
 ciation has been established for this and other purposes. As regards 
 all foreign and through traffic, the foreign and through fares of all 
 the railways, parties to the system, are forwarded to the Clearing 
 House, who apportion the share belonging to each. As between two 
 companies for goods, each company is entitled to one cartage termi- 
 nal, each to a station termijial, and these are made a first charge upon 
 the entire receipts, and the remainder, which represents the transit 
 services, is divided between them, if not by arrangement, according 
 
e,7 
 
 to distance ; and, as between three companies, the intervening com- 
 pany to whom the traffic is through, gets only its share of the remain- 
 der (after deducting the two sets of terminals) or of the through 
 transit service charges. 
 
 In the case of all foreign and through traffic the value of the cart- 
 age and station services must be ascertained and agreed upon. It is 
 not a question as between railways and their customers, but between 
 railways themselves. Nothing is said in the case how the amount 
 of £2829 is arrived at, and what the £6036 includes. 
 
 The £6,036 ought simply to have included the whole of the parish 
 gross receipts for local traffic, excluding the cartage at both ends, 
 the whole of the parish transit receipts for foreig-n traffic with one set 
 of terminals, and the whole of the parish transit receipts for through 
 traffic ; and the £2,829 should simply have included the two sets of 
 station terminals for the local traffic, and one set of station terminals 
 for the foreign traffic. No mention being made of the mode by 
 which the £6,036 and the £2,829 are arrived at, it must be assumed 
 that they correctly represent what they profess to be. These figures, 
 taken in connection with the facts found in the case, viz., that the 
 appellants are parties to the clearing house system, and that they 
 have adopted the plan pursued by that system, and that the station of 
 Ware, within the parish, is rated separately from the line of railway, 
 will form the facts upon which the opinion of the court is required, 
 the appellants contending that the £2,829 should be deducted,' the 
 respondents contending it should not. This was the real question, 
 but there was a second one put, viz. : — " Whether the capacity 
 " to earn the £2,829 was to be considered in determining the 
 " rateable value of the stations.'' The court held that the amount 
 of the terminals and the amount of expenses incurred in earn- 
 ing them, are parts of the general earnings and general ex- 
 penses of the line, and are to be treated in the same way as any 
 other part of the gross receipts and outgoings. This is an answer to 
 the first question, and a most decided one too. The answer to the 
 second is equally so ; they say the appellants contend that these 
 allowances, which are called Terminals, are not part of the earnings 
 of the line, but to be considered as earnings of the stations — " We, 
 " however, are of opinion that we must, in conformity with the 
 
 F 2 
 
C8 
 
 " established practice (a), treat the stations as only indirectly con- 
 " tributing to the profits of the line, and consequently as being to be 
 " rated as land and buildings, whose value is, to some extent, 
 " enhanced by their capacity of being employed in connection with 
 " the line." 
 
 It is perfectly clear, from the above decision, that no deduction 
 must be made from the two sets of station terminals in regard to 
 local traffic, but no decision has evidently been given as regards 
 cartage terminals. As between one company and another, in appor- 
 tioning the through receipts the services rendered at the two ends 
 would necessarily be taken into account. The entire receipts would 
 of necessity include, as regards all carted rate goods, three classes of 
 services, and the company discharging those services would expect a 
 profit upon each. As long as the three classes are all performed by 
 one company, the question of the number of services and the fair 
 profit to be allowed upon each need not be gone into at all ; but when 
 two companies are concerned, then the nature and extent of the 
 services rendered must be gone into, and the fair profit upon those 
 
 («) The court is evidently referring to the decision laid down by the 
 court of Queen's Bench in the Middlesex case (consisting of Lord Campbell, 
 C. J., Erie, J., Hill, J., and Wightman, J.,) when the station, works, 
 plant, engines, engine-houses, reservoirs, &c., are directed to be rated 
 as mere land and buildings, with fixtures and machinery attached, and 
 deriving some additional value from their capacity of being applied to 
 such purposes as a water company, and when the judgment on another 
 part also says, " But the tenants of the lands indirectly earning no profit 
 " would not be liable to be rated in respect of any rent in the ordinary sense," 
 (which is profit, remaining after all deductions have been taken from 
 the receipts.) But as these parts of the apparatus directly earning nothing, 
 but indirectly conducing to such earnings elsewhere, are assumed to continue 
 in operation, the company to whose interests such continued operation is 
 essential, must be assumed to pay adequate remuneration to a contractor for 
 land and fixed capital invested therein, together with the labour and skill 
 requisite for the effective continuance of such operation ; and these con- 
 tractors with the company would stand in the relation of occupying tenants 
 to the parish, and the part within the parish would be the rateable subject, 
 and the local rateable value would be such sum as would pay the rent of the 
 land and the profit on fixed capital thereon. 28 L. J. Rep. (N. S.) M. C. 135. 
 
69- 
 
 services, in both their nature and extent, must also be gone into. 
 Otherwise, how can they be appportioned. 
 
 Take foreign traffic, for instance, between two i-ailways, A. and B., 
 A. having its goods station at London, and B. having all its stations 
 in the country. The cartage services rendered in London by A. are 
 more expensive to A. than the corresponding services in the country 
 to B. Greater services represented by greater outlay require greater 
 protit in proportion. Outlay, plus profit, equals the fare. The allow- 
 ances, therefore, made between A. and B. will include both. The 
 clearing house allowances necessarily include both. 
 
 Any railway A. is perfectly entitled to deduct the cartage terminal 
 allowed by the clearing house as between themselves and another 
 company, because they never receive it, and the hypothetical tenant 
 would never receive it. But when they deduct at the same rate for 
 the cartage terminals on their own local or home traffic, they are de- 
 ducting not the outlay, which the tenant as well as themselves would 
 have to incur, but the profit upon the outlay, which the tenant would 
 receive as well as themselves, and which profit he would take into 
 consideration in fixing the rent. Many companies in the half-yearly 
 accounts issued to their shareholders, bring only into account the net 
 goods receipts after deducting for cartage. Some companies bring 
 instead the gross receipts, as well as the cartage cost, and carry out 
 the net. In each case, however, this cartage, whether shown or not 
 shown upon the accounts, is cartage paid, and in no case corresponding 
 to the clearing house charge, which is cartage paid plus profit thereon. 
 
 The next case that came before the court of Queen's Bench was the Hauffhiev 
 Haughley case. The Great Eastern Railrvay Company v. The Parish "ase, in 1866. 
 of Haughley (a), in 1866. 
 
 Before going into this case, it will be desirable, in order to make Contributive 
 the contention of the parish inteUigible to the general reader, and to value recog- 
 enable him to judge how far the decision of the court of Queen's principle 
 Bench really bore upon the views contended for by the parish, to 
 state what these views really were, how far these views were cor- 
 rectly stated in the case, to what extent they were affected by the 
 findings, and how far the statement in the case really brought the 
 views of the parish fairly before the court of Queen's Bench. And 
 in considering these and the rulings of the court thereon, the reader 
 
 {a) For statement of case, see, p. 76. 
 
70 
 
 is referred to the general observations that precede this brief history 
 of railway rating. 
 
 First, in explanation, it must be mentioned that the term local 
 traffic has been misunderstood and misapplied throughout. 
 
 The local traffic of Haughley station is, of course, the traffic that 
 starts from, or ends at, Haughley station. The local traffic that 
 passes over the parish of Haug-hley is the traffic that passes over the 
 parish between any one and all of the stations on one side, and any 
 one and all of the stations on the other that belong to the Great 
 Eastern system. It is necessary that this should be clearly under- 
 stood, because in the case the Haughley station traffic, which was 
 very small, was termed local, and all the rest of the traffic was termed 
 through, and by that arbitrary distinction not recognized at all in 
 railway parlance. It appears, at first sight, and it is so stated, in 
 some descriptions given of the case, that there was an attempt on the 
 part of the parish, to increase their local earnings (improperly so 
 called) by the profits made out of the through traffic. This local 
 traffic might have been ignored altogether ; might not, in fact, have 
 existed at all ; the existence of a station in the parish was a mere 
 accident ; and yet the condition of the parish would have been the 
 same if there had been no station there. 
 
 In order to understand the real contention of the parish, and before 
 we state specifically whatJt was, let us consider how the matter stood 
 before the contention. The court of Queen's Bench had ruled, in the 
 Dorking case (o), that there was a value over and above the local value; 
 by the term local,is here meant the parochial earning.", less the local ex- 
 penses and allowances, the parochial earnings being the aggregate mile- 
 age amount of fares and tolls that would belong to the parish, supposing 
 that for every passenger and for every ton of goods conveyed over it 
 the entire fare of the passenger, or the entire transit charge for the 
 goods, had been equally divided per mile throughout the entire length 
 of the respective distances caiTied. It may be mentioned here, and 
 it will be more fully gone into hereafter, that the uniform mileage 
 division of the entire fare, or toll, may be no more correct than would 
 be a mileage division of the expenses. For the purposes of explana- 
 tion, let it be assumed for the present that it is correct ; but the court 
 
 (a) 3 El. 8c B. 491 ; 23 L. J. Rep. (N. S.) M. C. 84. 
 
71 
 
 at the same time ruled that the rent agreed to be paid by the South 
 Eastern, which was very much in excess of the net earnings of the 
 branch upon which the parish of Dorking was situated, was not 
 necessarily the rent, as various rensons might have induced the South 
 Eastern to give a rent that the property really was not worth. Still 
 the property was avowedly worth more than the net earnings of the 
 branch would justify per se. 
 
 In the Cannock Chase case {a), which was evidently an attempt to Cannoek case, 
 induce the court to reverse their decision in the previous case, and 
 in which it was stated that the Cannock line was worked at a loss, 
 and in which the appellants contended that as the line yielded no 
 profit, it ought only to be rated at its agiicultural value, the court, 
 consisting of Chief Justice Cockburn, Mr. Justice Blackburn, and 
 Mr. Justice Wightman, confirmed fully the decision in the Dorking 
 case. Chief Justice Cockburn giving the process that the tenant would 
 necessarily adopt to get at theproper rent, viz. : — " He would," hesaid, 
 " ascertain what the traffic on the branch was, and what the expenses." 
 According to the case there would be a loss. This he would put on 
 one side of the account. He would then ascertain the profits it 
 would produce to the main line, that is, the traffic receipts it would 
 bring, and the increased expenses occasioned by that traffic, and the 
 excess of the former over the latter. These net profits he would put 
 on the other side of the account. The excess of this gain over the 
 loss upon the branch, would form the basis upon which he would 
 arrive at the rent he would give. 
 
 What also does Mr. Justice Blackburn say — " What would be the 
 " elements of the rent ? why, amongst others, the capacity to add to 
 " the takings of the main line," and Mr. Justice Wightman says — 
 " the branch is worked at a loss ; if it brings no profits to their main 
 " line, why do they keep it open ? " The case was sent back to the 
 arbitrator to ascertain what, taking all its advantages into considera- 
 tion, is the rateable value of the branch line in the respondent's 
 parish to the appellants. The law being thus settled, viz., that a 
 branch, over and above its own profits, (if any) might have a value 
 from the profits of the traffic it brought to the main line, the pariah 
 of Haughley attempted simply to carry out the process commended 
 
 (a) Vide supra, p. 64. 
 
72 
 
 by Chief Justice Blackburn, and directed to be done by the arbi- 
 trator in the Cannock Chase case, viz., to find out how far the profits 
 made on th© main line would exceed the loss on the branch from the 
 traffic that passed over both. Now, it is evident, that if a line of rail- 
 way consists of main line and branch, and that if the branch is 
 worked at a loss, the parochial receipts being calculated for all the 
 traffic that passes over the main hne and branch at a mileaije division (a) 
 throug'hout, and that if the traffic that the branch bring-s, produces a 
 greater profit upon the main line than there has been loss incurred upon 
 the branch, that, according to the law, as laid down in the two cases 
 above mentioned, the branch would still have a value in spite of the 
 If loss on loss ; and it equally follows, that if the traffic receipts are apportioned 
 be^made^ d '° branch and main line, according to a mileage division, that the 
 from profit on receipts upon the branch plus the receipts upon the main line, must 
 main line, the (^gg^jjep equal the whole receipts of the company, and, consequently, 
 vision of re- that if there he a value on the branch, that value can only be ob- 
 
 eeipts must be t^jng^ (,„(; of fjjg receipts upon the main line, or from allocating a 
 abandonea, or r r j n 
 
 the station lower scale of expenses to the branch, than, if worked by itself, it 
 
 district would incur. If so, then it follows, either that the mileage division 
 
 expenses must ° 
 
 be divided by of the receipts as now adopted is incorrect, or the mode of allocating 
 
 a mileage too. jjjg expenses, one or the other must follow. 
 
 What the respondents in the Haughley case would have liked to 
 have said was, the first is wrong, the receipts of the traffic passing 
 over the parish should not be arrived at by a mileage division 
 throughout ; but as they had not sufficient means at their command 
 to ascertain what the parish receipts should be, when divided accord- 
 ing to the principle they would have contended for, they wei-e forced 
 to fall back upon the second, viz., that of the allocation of expen.ses. 
 It must never be lost sight of, that the tenant would, as regards the 
 whole railway, make, not the gross receipts the basis of his estimate 
 of rent he could give, but the gross profits ; and if he would do that 
 with the whole, supposing he had to give a rent for different portions, 
 belonging, say, to different persons, he would make the resppctive 
 profits upon the several portions the basis of the rent. The respon- 
 dents would do so too. They say the parochial receipts should not 
 be started with, but the parochial earnings, or excess of receipts 
 
 (n) Not a mileage division from one end of tlio line to the other, but a 
 mileage division of the station caniingi>. 
 
73 
 
 over expenses. The parochial receipts are arrived at in this way ; the 
 yearly receipts taken between every station on the one side of the 
 parish and every station on the other side of the parish are divided 
 by the respective distances between the stations, and an equal mileage 
 proportion given to the parish. This mode of subdivision applied 
 throughout, would, of necessity, absorb all the receipts. The expenses 
 incurred in earning those receipts are allocated, some according to 
 train miles run, some according to receipts ; but whether by one 
 mode or the other, when so allocated over the whole, the whole ex- 
 penses will have been absorbed. If, therefore, upon a branch, the 
 allocated receipts are found to be only equal to or even less than the 
 allocated expenses, and if that branch, from its bringing a large 
 amount of traffic upon the main line has, as the courts have ruled it, 
 may have a value over anci above its own profits, from its connection 
 with the main line, then it necessarily follows, that if the receipts, 
 apportioned to the main line, are not to be reduced, the value must 
 be obtained by reducing the allocated expenses upon the branch, and 
 consequently increasing those on the main line. 
 
 The parish receipts are the aggregate mileage proportion of all the 
 year's traffic that passes over the parish ; this traffic is the aggregate 
 of several single fares, from individual passengers, who are conveyed 
 at diiferent rates of expenses at different parts of the journey. The 
 fare charged for him is one entire fare, the mileage expense of 
 carrying him varies with the districts through which he passes. 
 The company say, as regards the passenger, and therefore as regards 
 all, or as regards the whole receipts, divide the fare equally per mile 
 throughout, and then allocate the expenses, not according to what 
 they really are, per passenger, in the several districts, but on another 
 principle of allocation, train mileage or otherwise. The respondents 
 say, and that was their intended contention before the court of 
 Queen's Bench — ascertain first what are the difierent district expenses 
 belonging to the passenger, and if to him, then to any number of pas- 
 sengers, chargeable against the entire, and then apportion the dif- 
 ference according to a mileage division. How far this contention of 
 theirs was fairly and fully brought before the court in the decision 
 given in the Haughley case, the reader must judge for himself. The 
 respondents intended to lay down a general proposition, upon which 
 they wanted the court's opinion. They said, or they would have 
 
74 
 
 said, if they could have said what they would, we admit, as between 
 a main line and a branch, it is not the rent actually agreed to be 
 given for the branch, while the branch is independent, but what the 
 branch should turn out to be worth afterwards, when it becomes a 
 portion, part and parcel of the main line, and we go further, we say 
 that if a branch contributes to the working of the main, so equally 
 does the distant end of the main line to the other end, that there is 
 no difference, contributively, between the one and the other ; that if 
 the distant non-paying end contributes to the profit upon the London 
 end, so also does the London end reciprocate the benefit, and con- 
 tribute to the other. And this being so, they, the respondents, say — 
 this state of action and reaction throughout, and all the reciprocal 
 advantages that result therefrom, are all provided for by the principle 
 they contend for as the proper principle to be applied any where in 
 arriving at the rateable value of any portion of a railway, they say — 
 Do not start with a mileage division of the full fare, but rvith a 
 mileage division of the net profit of the full fare. 
 
 It is somewhat curious that the analogous case, that of the four-horse 
 stage-coach, which Chief Justice Cockburn refers to, is the very case 
 the respondents rely on as confirmatory of their views : His Lordship 
 says, " Take a stage-coach from Norwich to London : the expense of 
 " running it from Norwich to London was so much per mile, with 
 " little or no variation throughout the journey, sometimes it only 
 " carried five passengers, sometimes fifteen ; if it carried five, it 
 " worked at a loss, and if it carried fifteen, it worked at a profit, and so 
 " it is with the railway." And so say the respondents, but they say 
 more, they say this— stage-coaches are horsed for different stages by 
 different persons. Take four stages of equal lengths, each stage 
 horsed by different persons. In the first stage all the expenses of 
 horsing the five persons are chargeable against them only, and there is 
 no profit ; when these five persons are carried with ten others on the 
 fourth stage, and the expenses of horsing are divided between fifteen, 
 these five passengers pay. Upon what is the entire fare of each of 
 the five passengers calculated over the four stages t surely upon this, 
 each will cost per mile in the first stage say «. in the second stage 
 §, in the third stage J, in the fourth stage %, then, assuming the 
 stages to be equal, say 10 miles, the expenses throughout, per 
 
 .,■11 Un 111 4- ll'« 4- '"« 4- 10" — 250a 
 Will be lOa T ji- T -3- T -r-. -j-j — 
 
75 
 
 This would be the basis of their estimate of what the fare 
 should be; the profit, say, of l^ would be added, giving together 
 ^2 or 30a, for the entire fare. The respondents, in effect, say, — 
 his Lordship has not followed out the case, the question is not 
 whether a loss is not incurred in the first stage, and a gain made in 
 the last out of the same passengers, but whether, supposing the first 
 stage to be in the hands of A., or supposing it to be unoccupied, 
 would it not be worth while for the parties who had the last stage, to 
 share the entire profits of the five passengers with A., or to horse them 
 themselves at a loss through A. if they could carry them on to the 
 first stage, and so divide the fixed expenses of horsing that stage 
 between fifteen passengers instead of ten ; and respondents contend 
 that the parties who had the last stage, would either in giving a rent 
 or undertaking to horse themselves, look at the whole fare, and the 
 whole expense, and not at what the fare and the expense was in the 
 first stage. And the respondents say, with his Lordship, that, as 
 with the stage, so with the railway. The stages of coach travelling 
 correspond with the station districts, as passengers are conveyed, per 
 passenger, more cheaply in the one, so are they conveyed more 
 cheaply in the other, according to the number of passengers among 
 whom the fixed expenses and allowances are to be divided ; but they 
 in the case of railways go further than his Lordship, and say, the 
 value of the first or distant traffic of a railway is not only what it 
 clears within its own district, but upon the number of districts it 
 passes through afterwards in its upward journey, and upon the 
 number before in its downward journey, and upon the several rates 
 of district profits to be obtained out of each passenger. The respon- 
 dents agree with his Lordship upon the facts, but not with his 
 inferences ; they say, if it was thought the distant end would not 
 pay, why make it ? if it is found not to pay, why work it ? and if it 
 is made, and if it continues to be worked, then it is simply because 
 experience has satisfied the company that the possession of the line 
 brings them traffic, which, taking the year throughout and the ex- 
 penses per passenger throughout, is worked at a profit. 
 
 In conclusion, it must be distinctly stated that in the opinion of 
 the respondents, this contention on their part in the Haughley case, 
 was strictly in conformity with the decisions in the Dorking and 
 Cannock Chase cases ; that there was no seeking to withdraw profits 
 
76 
 
 leg'itimately earned in one parish to add them to another ; but to 
 show that the question for the imaginary tenant would in all cases be 
 net profits of a traffic, not gross receipts ; that as between one part of 
 a railway and another, the proper principle of division would be net 
 profits of a traffic, not gross receipts ; and that as regards all traffic 
 between station and station, the net profits, and not the gross receipts 
 should be divisible among all the parishes over which that traffic 
 passed, in proportion to the mileage. 
 
 The Great Eastern Bailmaj/ Company, appellants, v. The Church- 
 wardens and Overseers of the Parish of Haughley, respondents (a). 
 
 The case stated was as follows : — 
 
 Haughley " The appellants are the Great Eastern Railway Company, their 
 
 case, 1866. u jjjjg j,jjjjg through the parish of Haughley, in the county of Suffijlk, 
 
 " with two branches, one leading to Bury, and the other leading to 
 
 " Norwich. There is a station in the parish of Haughley, and there 
 
 " are together 1 mile 6 chains of railway in the parish. 
 
 ■' The gross yearly earnings on the railway in the parish of 
 " Haughley are £2,660. The principal traffic is that passing over 
 " the railway in Haughley from Bury, in the direction towards 
 " London, and back ; and from Norwich, in the same direction, and 
 " back ; and there is also considerable traffic passing over the railway 
 "from Bury to Norwich and back; the mere local traffic, namely, 
 " that originating or ending at Haughley, is very small. 
 
 In addition to the above, the arbitrator says : — 
 
 " I also find the following deductions from the gross receipts to be 
 " properly made in ascertaining the rateable value : fund for renewal 
 " of way, £236; fund for depreciation of rolling stock, £76; risks 
 " and casualties, £20; interest and tenant's profits, 16 (jb) percent, on 
 " capital employed in the rolling stock and stores, £430. These sums, 
 " added together, amount to £732 ; and, supposing that the line in 
 " Haughley is properly rateable only in respect of the earnings of 
 
 (a) 35 L. J. (N. S.) M. C. 229. 1866. 
 
 (6) Mr. Worlledgo, who hoard the next appeal, found 12^ per cent. only. 
 
77 
 
 " Haughley, the figures in this and the preceding paragraph, give 
 " the rateable value of the line in Haughley about £388 : in that 
 " case the blank left for rates and taxes would be filled up, £77. 
 " And I find the rateable value of the stations in Haughley would be 
 " £498. The abo7e figures show the value of the occupation of the 
 " railway derived from the actual earnings in the parish of Haughley, 
 " and that portion of the expenses and deductions fairly applicable to 
 " the portion of the line in the parish of Haughley. The expenses 
 " and deductions depend to some extent upon the amount of traffic 
 " or earnings ; as, for instance, the item for miscellaneous expenses, 
 " which is arrived at by dividing the whole amount of miscellaneous 
 " expenses in proportion to the earnings upon each part oi^the line. 
 '■ They also depend, to some extent, upon the distance run by the 
 " engines, and would be the same whether there was one carriage 
 " attached or several, and whether the carriages were empty or full. 
 
 " And I have been desired to state, for the opinion of the court, the 
 " following question as to the occupation in Haughley being in- 
 " creased in value by a participation in some portion of the profits 
 " earned (a) on other parts of the line. 
 
 " The respondents contend that there is an additional portion of the 
 " profits beyond those actually earned in Haughley properly attribut- 
 " able to the occupation in Haughley, and therefore to be taken into 
 " account in ascertaining the rateable value ; they contend that, in 
 " respect to that portion of the traffic which passes not only over the line 
 " in Haughley, but also over other portions of the line, there should 
 " be a participation in all the profits earned, and therefore that, 
 " inasmuch as the same traffic is carried at a much greater profit over 
 " other portions of the line where the traffic is greater than over 
 " Haughley, each part of the line may be regarded as contributing to 
 " earn those additional profits. And the amount of contribution 
 " which the respondents insist upon is found by the mileage in 
 " Haughley, as they contend that, in respect of the same traffic 
 " passing over any portions of the line, each mile over which it passes 
 
 (a) Not earned in the opinion of the respondents, but alleged to be earned, 
 and alleged wrongly. 
 
78 
 
 " miist he considered as participating equally in the profits earned 
 " hy that trajic, or in other words, as earning apportionate part of 
 " them. If they are rig-ht in so contending, as hereinbefore mentioned, 
 " for the participation according to mileage of all profits in respect of 
 " the same traffic, and if the fact that ' the whole line is mofhed as one 
 " concern,' is sufficient to establish that proposition, — then I find as 
 " a fact (a) that independently of the profits derived from the actual 
 " profits in Haughley, there is a further profit, which upon the 
 " aforesaid mileage principle, would, to the extent of £75, be appli- 
 " cable to Haughley. If the reapondents are not right in so con- 
 " tending, then I find as a fact {a) that there are no profits attributable 
 " to the occupation in Haughley beyond those derived from the 
 " actual earnings there. 
 
 " The question for the opinion of the court is, at what sum the 
 " Great Eastern Railway Company ought to be rated in Haughley ? 
 " I reserve the question of costs until the decision of the question by 
 " the Court of Queen's Bench." 
 
 The case having been referred back to the arbitrator to raise any 
 questions of law, that either party might think fit, Mr. Uleasby 
 further certified and reported as follows : — 
 
 '' I have already raised upon the case the only question of law that 
 " I was, according to my understanding of what took place, called 
 " upon to raise. I was requested to raise, as a matter of law, the 
 " question of what was called ' contributive value,' that is to say, of 
 " some additional value beyond the immediate value of the occupa- 
 " tion in Haughley, as well as other parts of the line, each mile of 
 " the railway over which that traffic passed must be regarded as con- 
 " tributing equally to the earnings of the profits derived from that 
 " traffic ; in other words, that if the same traffic is carried at a much 
 " greater profit over one part of the line than over another, still 
 " each part oj the line must he considered as equally earning the 
 " profit. Being struck with the generality of this proposition, and 
 " the apparent difficulty of sustaining it, I took care to have it dis- 
 
 (o) Turn to Preliminary ObserTatious. 
 
?9 
 
 " tinctly understood that this part of the claim made by the respon- 
 " dents was founded entirely upon the correctness of that proposition, 
 " and that, if that proposition were not sustained, that part of the 
 " respondent's claim failed. If that proposition be correct, there can 
 " be no other question of law, the figures arrived at being merely a 
 " result of the calculation of the profits. In obedience to the z-ule of 
 " court, and at the request of the parties, I make an addition to the 
 " case as follows : — 
 
 " I have been requested by the appellnnts to state upon what prin- 
 " ciple certain figures in the expenses and deductions have been arrived 
 " at. The item, for locomotive expenses, £468, has been arrived at by 
 " taking the locomotive expenses on the whole Oreat Eastern system, 
 " and then giving to Haughley the sam,e proportion as the number of 
 " miles run by trains through Haughley bear to the number of train 
 " miles run over the whole system. The item for carriages and wag- 
 " gons, £115, was arrived at in a similar manner, the difference being, 
 " that the number of carriages and waggons in each train must be taken 
 " into account. The item for miscellaneous expenses, £478, was 
 " agreed to on both sides, and was arrived at by taking the gross 
 " amount of miscellaneous expenses applicable to the whole system ; 
 " and then taking that proportion which the gross receipts in Haugh- 
 " ley bore to the gross receipts over the whole line. Both parties 
 " agreed that this was the proper mode of apportioning these expenses. 
 " The gross traffic in Haughley, £2,660, is arrived at by taking that 
 " part of the receipts which arises from traffic not entirely local on 
 " the mileage principle ; for example, if the whole fare of a passenger 
 " is a certain sum, a proportionate part of this sum is attributed to 
 " Haughley, according to the number of miles in Haughley " 
 
 There was a second point raised, which needs no comment. It will 
 be found stated in the judgment. It has reference simply to the 
 means of arriving at the yearly fund to be set aside for the deprecia- 
 tion of tenant's capital. 
 
 Chief Justice Cockburn, in his judgment, said: — 
 
 " Two questions have arisen in this case. First, whether in 
 " assessing Haughley for rating purposes, the traffic beyond it ought 
 
80 
 
 " to be taken into account, in oi'der that the expenditure within the 
 " parish may be reduced ; for the more we reduce the expenditure, 
 '' the greater is the profit of the line rated, and the greater, of course, 
 " is its rateable value. After some attention to the case, it seems to 
 " me that the decision of the arbitrator, Mr. Cleasby, was right. 
 " There is a through traffic from London to Norwich, and, beyond 
 " Haughley, on the road to London, there is a large accession to this 
 '' traffic. Now, it is said by Mr. Field, that the effect of this addi- 
 " tional traffic ia to reduce the expenditure with respect to each 
 " individual traveller; so that, supposing him to have started from 
 " Norwich, the expense of his carriage through the parish of Haughley 
 " must be lessened by taking into account the diminished expense of 
 " conveying him upon other parts of the line on the way to London. 
 " But I do not think that the expenses of the line to be rated ought 
 " to be calculated with reference to the cost of conveying passengers. 
 " The working expenses of the whole of the traffic between Norwich 
 " and London ought to be ascertained, and a proportionate part of 
 " these expenses must then be apportioned to the trafficin Haughley (o). 
 " The cost of carrying a passenger may vary upon different parts of 
 " the line ; but the working expenses may still be after an uniform 
 " rate. This may be illustrated by the case of the old stage coaches, 
 " The expense of running a stage-coach between Norwich and London 
 " was so much per mile, with hardly any variation. Sometimes there 
 " were five passengers, sometimes thei'e were fifteen. If there were 
 " five passengers, the coach ran at a loss ; if there were fifteen, 
 * the journey was a profitable one. So, also, with this railway, when 
 " it is being worked from Norwich to Haughley, the profit is likely 
 " to be less than when it is being worked along those parts of the 
 " line beyond Haughley, where there is received a large addition to 
 " the passengers and traffic, so that the rest of the journey is lucrative 
 " and profitable. There is also this fallacy in Mr. Field'ii argument ; 
 " for, according to him, the working expenses of the line rated are to 
 
 (a) This is what the respondents say J but how? The whole parish pas- 
 senger receipts are made up of the traffic between station and station ; and 
 this latter is made up of individual fares, which, passing through several 
 station districts, comprise different rates of expenses. 
 
81 
 
 " be got at by taking into account the protits (b) of the additional traffic 
 " beyond Haughley, and not the mere working expenses of this traffic. 
 " These profits (c), whether by accident or not, are acquired without; 
 " and beyond the parish of Haughley ; and they cannot be rated as 
 " belonging to that parish. The first question must, therefore, I think, 
 " be decided in favour of the appellants. 
 
 " The other question is, whether, in making deductions in respect 
 " of the repairs and renovation of the railway stock, the arbitrator 
 " was right in dealing with the case upon the supposition that the 
 " hypothetical tenant would make his calculations as to the amount 
 " of rent, under the assurance that the stock would be replaced at the 
 " end of what may be called its natural life ; or, whether these deduc- 
 " tions are to be made by finding the difference in the value of the 
 " stock at the beginning and end of the year of tenancy. 
 " Mr. Coleridge strongly urged upon us that we should be departing 
 " from the words of the statute if we held that the arbitrator was 
 " right in his view that the deductions in respect of repairs oug-ht to 
 ' be spread over the whole period of the natural life of the stock. 
 " But it is one thing to start with the assumption that you are dealing 
 " with a tenancy from year to year, and another to say that the cir- 
 " cumstances are such that the hypothetical tenant, in considering 
 " what rent he shall pay, is bound to assume that his tenancy will not 
 " last beyond a year. It is undoubtedly a tenancy from year to year ; 
 " but it is a tenancy of such a character that the tenant may well 
 " think it worth his while to deal with the rolling stock as though he 
 " were sure that his tenancy will not be broken up at the end of the 
 " year; and if it were shown that in a large number of yearly tenan- 
 " cies the tenant does deal with his stock in this manner, this fact 
 " ought to be considered in valuing the rent payable under a yearly 
 " tenancy of this railway. At all events, the question, whether the 
 " tenant would make his deductions upon one principle or the other 
 " is a matter of fact which must be decided by an arbitrator or at 
 
 (6) A mistake. It takes the working expenses solely into account, and 
 says, charge the gross expenses of the station traffic against the gross receipts 
 of same, and then apportion the difference equally over the length of the 
 traffic. 
 
 (c) Part of the profits, not the whole. 
 
 O 
 
82 
 
 " sessions, as the case may be. Now, I think, that there is nothing 
 " in the Parochial Assessment Act which requires us to say how the 
 " arbitrator ought to have decided upon a question of fact, and whether 
 " he has decided rightly or wrongly. He must find out the circum- 
 " stances which are likely to exercise an in€uence upon the person to 
 " whom a railway is let from year to year, and how much rent he 
 " might fairly be expected to give. When he has come to a conclu- 
 " sion, it is not our province to disturb it, or even to pass an opinion 
 '* upon the reasoning which has guided him. This question must, 
 " therefore, be decided in favour of the respondents." 
 
83 
 
 CHAPTER IV. 
 
 DEDUCTIONS, AND THEIR PRINCIPLES OP 
 ALLOCATION TO A PARISH. 
 
 Railway companies are landlords as well as tenants, and 
 between themselves and their shareholders it matters not in 
 which order the expenses are taken. > As between themselves 
 and the parish it matters materially. The valuation of a railway 
 must be conducted on the footing of the valuation of any other 
 property of a similar class, which is made for the purposes of 
 assessment to the poor's rate. The gross rental must be ascer- 
 tained first, to obtain which you must not deduct the landlord's 
 outgoings, and the net rateable must be ascertained last. Only 
 those items of expenditure which have to be incurred by the 
 imaginary tenant, together with the usual tenant's allowances, 
 are proper deductions in the first instance. It will be found 
 that in the case of railways, as well as in other classes of pro- 
 perty, there are some expenses one scarcely knows whether to 
 assign to the landlord or to the tenant — these all belong to 
 reparation. If the particular item of expenditure in the com- 
 pany's disbursements includes both tenants' repairs and land- 
 lord's maintenance, not landlord's renewal, (for under the word 
 maintenance both must be included ; the words used in the 
 6 & 7 Will. 4, c. 96, being, " also the probable average annual 
 " cost of the repairs necessary to maintain the property in a 
 " state to command such rent) ; the tenant's repairs must ba 
 " deducted." 
 
 They bear as small a proportion to the landlord's expenses of 
 repairs and renewals, as do those of a yearly tenant of a house 
 
 Q 2 
 
84 
 
 to those belonging to the landlord. What are the probable 
 items of a tenant's expenditure, examining the rails, lifting and 
 packing- the sleepers, tightening keys, &c. These must be 
 allowed, certainly, if great accuracy is required ; but it would 
 come to a very small percentage of what the landlord's expen- 
 diture would be (a). 
 
 When, however, it is sought to make this a pretext to charge 
 all the landlord's repairs to the tenant, and limit the landlord's 
 statutables to a sinking fund for renewals, so as to make the 
 difference between the gross and net, the mere sinking fund to 
 replace, or what it would be called with house property, to 
 rebuild (J), then the fact must be ascertained, and the com- 
 pany's own item of maintenance must be divided into tenant's 
 repairs, landlord's repairs, and landlord's renewals, (all of which 
 subdivisions, the one item in the accounts, after a few years' 
 opening of the line, necessarily consists of) in order to allow 
 the first to the tenant, as one of his out-goings, and to show 
 whether the landlord's repairs are above or below the average, 
 and whether the yearly sinking fund for renewal has been 
 overdrawn upon or otherwise. 
 
 To adopt any other plan than this, would be to set the Paro- 
 chial Assessment Act at defiance, and to afford to companies, 
 by the comparatively slight difference in percentage that would 
 then exist, a pretext for stating that the difference of per- 
 centage for statutables between the gross and net of house 
 
 (a) Of the 15Z. difference, generally made between the gross and net of a 
 house letting at a yearly rent of 100^., including repairs, insurance, &c. 
 necessary to maintain the property, one per cent, would be enough for 
 that. 
 
 (6) It is open to any one to put his own construction upon the wording of 
 the clauses of any Act, and to commend his views as strongly as he pleases 
 to others, but it is not open to omit or alter a word in order to give a 
 greater colouring to those views. 
 
83 
 
 property is considerably in excess of that of railway 
 property. 
 
 " We are (not) of opinion that in the c^se of railways, it is 
 " best to consider gross estimated rental as the rent which a 
 " tenant would pay who has annually to repair and maintain 
 " the way, but not to provide for its ultimate renewal (a). 
 
 section i. 
 Maintenance of Wat, Works and Stations. 
 
 The first item of deduction in the order in which they are 
 found generally in the companies' accounts is maintenance of 
 way, works and stations, that is, maintenance and insurance of 
 the subject, the corpus as it is called, and so much of this item 
 as has reference to what are really tenants' ordinary repairs 
 or expenses of working should be allowed here, and the re- 
 mainder brought forward afterwards under " staUttalles." 
 
 In apportioning this item of mere tenant's repairs, when 
 correctly arrived at for the whole system, to the particular 
 parish, two modes will probably be contended for, one by train 
 miles, another by length miles ; another, perhaps, by receipts ; 
 without expressing any opinion, it will be sufficient to quote 
 the words of Mr. S. Laing, the great railway financier, in 
 his letter to the shareholders of the Brighton Company 
 (respecting the amalgamation with the South-Eastern Eailway 
 
 (a) Neither the tenant nor the company has to maintain annually and to 
 renew ullimately — the whole railway will never at once he ultimately 
 renewed — it was constructed by lengths, it is being renewed yearly by 
 lengths, and charged in the maintenance, and therefore to put by a yearly 
 sinking fund, anil to draw upon it also in the year's maintenance, is simply 
 to have it allowed twice over. 
 
86 
 
 Company). " Train miles, or in other words the work done, and 
 " not the money received, regulates four-fifths of the expendi- 
 " tui-e on a railway. A passenger costs you just the same, 
 ^' whether, as on the South Coast Line, you get 2d. a mile from 
 " him, or, as on the South Eastern, you get 2^<?." 
 
 section ii. 
 Locomotive Expenses, Eepairs and Renewals. 
 
 The next item of the company's expenditure is locomotive 
 expenses, that is, the monies spent during the year upon the 
 locomotive stock, in running it and in maintaining it. Com- 
 panies and parishes join issue as to this item also; first, what it 
 includes; secondly, how it is to be allocated. As to thejirst, 
 both parties are agreed that it includes all the working ex- 
 penses, and repairing expenses ; but parishes, in addition, say 
 it includes renewals as well, and they contend in consequence, 
 that when afterwards the company ask for the tenant a sum 
 for alleged depreciation of stock, they ask for what has already 
 been allowed in the company's item of expenditure, and that if 
 he is to be allowed the item among the tenant's allowances, 
 then this the second item of expenditure must be divided, and 
 only so much of it as has reference to working the engines and 
 doing ordinary repairs to them, must be allowed here. Issue 
 is always joined upon this matter, as it is one, among others, 
 that materially affects the rateable value. 
 
 As to the second, or how the sum properly arrived at for the 
 whole system is to be allocated to the parish, issue also is 
 generally joined. 
 
 The questions that naturally arise for consideration in deter- 
 mining the proper mode of allocation are these — given the total 
 of the expenses incurred over the whole system as a fact con- 
 nected with the particular railway under consideration, how is 
 
87 
 
 that amount to be dealt with ? This total has been incurred in 
 running so many train miles, or it has been incurred in carrying 
 so many passeng-ers, or in earning so many receipts : there have 
 been so many train miles run per mile (or so many trains) over 
 the particular parish, there have been so many passengers car- 
 ried, and the earnings derived from them per mile have been 
 so much — v?ill you apportion the total in proportion to the train 
 miles run, or to the passengers carried, or to the receipts taken ? 
 Some companies so keep their accounts, which they issue to 
 their sharedolders, that the shareholder can judge whether, 
 when compared with the receipts of the previous half year, 
 there has been diininution of percentage in the expenses. Some 
 companies so keep them, that the shareholders can judge 
 whether there has been any diminution when compared with 
 the train miles run ? Either principle will answer the purpose 
 for which it is intended, but they can scarcely both be correct 
 as a principle of allocation for parochial assessment. Companies 
 sometimes contend for one, sometimes for another ; there are 
 short trains and there are long trains, there are trains that are 
 all but full, and there are trains that are all but empty, there 
 are passenger trains and there are goods trains, and therefore 
 much may be said on both sides, as there are facts that appear 
 to favour the one principle, and facts to favour the other. 
 Again, there are engine miles, and engine train miles, &c., &c. ; 
 and there are passengers who pay Id., the larger number 
 generally by far, others who pay l^d., a few who pay 2^d, ; 
 there are long heavy trains filled with the first, there are short 
 express trains occupied by the last, and there are average trains 
 well or partially filled, as the case may be, with all three. 
 Different quarter sessions, occasionally, come to different con- 
 clusions. It is scarcely a question of law. 
 
88 
 
 section iii. 
 
 Cahriaqe and Waggon Repairs and Renewals. 
 
 This item, like that of locomotive expenses, must be con- 
 sidered in two different aspects, — First, as a whole, what upon 
 the whole system the expenditure includes, whether, besides or- 
 dinary repairs, it includes renewals, and such renewals that vir- 
 tually maintain the stock in such a state as would command for 
 the tenant going out at the end of the year the same amount 
 as he would have had to have paid on going in; and, in the 
 next place, how the whole is to be allocated to the parish. 
 Companies and parishes do with this item the same as with the 
 previous one, contend for that principle in each case which suits 
 them best, sometimes for one principle, sometimes for another, 
 but seldom both for the same ; the question is, which of the 
 two principles is right ? Is either right? It must be admitted 
 at once, as regards this item, that, given the same number of 
 trains over two parishes, the expenses would vary directly with 
 the number of carriages; consequently, if the number of car- 
 riages mileage run over the whole system could be ascertained, 
 and the number of carriages mileage per mile over the parish, 
 the total expense of this item should be allocated in proportion 
 to carriage mileage. Companies contend, however, that the 
 trouble of getting out the information would be too great " le 
 jcu ne vaudrait pas la chandelle." So they set up another 
 princii)le, they take the train miles in the parish, they average, 
 somewhat roughly, the carriages to a train, and in that way 
 they approximate to the carriage mileage in the parish, then, 
 iustead of taking out the entire carriage mileage over the whole 
 system, and dividing the entire expense by this mileage to 
 ascertain what it actually does cost them per mile, they assume 
 Id. per mile, and multiply the rough average parish carriage 
 mileage by that. 
 
89 
 
 Tlie question for the sessions is, which of these three approxi- 
 mations is the most correct, viz., allocating the carriage and 
 waggon repairs in proportion to receipts ; or to train miles ; or 
 approximating to carriage miles in the parish, and applying 
 an arbitrary sum of ^d. per milej the only really correct 
 principle of allocation, that per carriage mileage, not being avail- 
 able, from the trouble and expense involved in getting out the 
 necessary data. 
 
 section iv. 
 Traffic and Miscellaneous Expenses. 
 
 The next item or items of expenditure are those which are 
 sometimes included under the head of miscellaneous expenses, 
 sometimes they are called traffic and general charges, and are 
 kept distinct, sometimes coaching and station general charges, 
 but whatever names different companies have given to them in 
 their respective accounts, there are really three distinct classes 
 of items comprehended under this one head of miscellaneous 
 expenses, viz : 1. Expenses incurred for transit services over and 
 above what may have been already charged for in the two pre- 
 vious items. 2. Expenses incurred at the stations and those at the 
 general office in the management of the traffic ; and, 3rdly, Ex- 
 penses incurred as a joint stock company upon such services, as 
 would not be necessary, were there no shareholders or debenture 
 holders to divide the money among, after it had been received. 
 
 The first two classes of expenditure would be equally incurred 
 by the hypothetical tenant as by the company, the last would 
 not ; the first two would therefore have to be allowed over the 
 whole system, provided in any one year they did not include 
 any exceptionally heavy charges, such as for compensation 
 arising from accident, which should in that case be struck out. 
 
90 
 
 and the item introduced afterwards (a). In allocating these 
 items to the parish, the first of the two is so decidedly depen- 
 dent upon the length run, being purely for transit services, that 
 if the accounts of the company admit, which they do not all 
 do, of the item being distinguished from that of the second 
 class, this item ought to be allocated according to train miles, 
 and the second class being principally for station services, for 
 porters, ticket collectors, station masters, gas at stations, &c. 
 having really nothing to do with the miles run, should be allo- 
 cated according- to receipts. 
 
 section v. 
 
 The Government Duty. 
 
 This is an item imposed under the statute 5 & 6 Vict. c. 79, 
 upon all passenger receipts, except the third class and parlia- 
 mentary. Act 7 & 8 Vict. c. 85, s. 9, which should, of course, be 
 allowed. Parishes can only approximate to the amount, as the 
 government duty over the whole system only is accessible to 
 thera. It is usual for this item to be allocated per gross receipts, 
 or if the parishes obtain from the companies the passenger 
 receipts taken within the parish, then per passenger receipts, 
 but even this latter principle of receipts is not correct, as a 
 larger proportion of that passenger traffic may pay government 
 duty than of the entire passenger traffic. The companies can 
 ascertain what this item should be exactly. 
 
 (a) Componsation should be introduced as a special item. It should be 
 taken on an average of years, and when so taken should be allowed, whether 
 there had been any accident or not during the year. There are various sorts 
 of claims for compensation ; it is intended that all should be deducted and 
 averaged, those under Lord Campbell's Act for loss of life or limb as well 
 as those for loss or damage of goods, bad gold, bad debts, and any other 
 losses to which railway companies are liable. 
 
91 
 
 SECTION VI. 
 
 Tithe Rentcharqes. 
 
 This, of course, must be allowed, the company can tell what 
 it comes to within the parish exactly, as they must have had the 
 whole of the land taken by the railway re-apportioned. 
 
 SECTION vn. 
 
 Rates and Taxes. 
 
 All these are proper deductions, and must be admitted ; no 
 question, therefore, arises upon this item as a whole (a), but in 
 allocating them to the particular parish, it must be remembered 
 that rates and taxes are mostly local, and vary very much in 
 particular parishes, so that in making a valuation of a railway 
 in any parish, the rates and taxes over the whole system should 
 not be allocated like the other items of expenditure, but should 
 be omitted altogether, and the item itself should not be gone 
 into until the last, when a result is arrived at representing the 
 rateable value mixed up with the rates. 
 
 It frequently happens in an union that between one station and 
 another, where there is, of course, no disturbing element, and where 
 every mile would have the same rateable value, were the rates in the 
 £ the same throughout, that, owing to the difference of rates, ad- 
 joining parishes would really differ materially in rateable value. 
 Hence, whenever assessment committees have fixed the assessment of 
 the whole railway in the union at the same amount per mile 
 throughout, those parishes which paid higher rates in the £, would 
 have had fair ground of complaint, and could have appealed with 
 success under the Union Assessment Committee Act. 
 
 (a) Vide page 40, note (a) on tenant's income tax. 
 
92 
 
 The above comprise the tenant's, working- expenses, which, 
 deducted from the parochial receipts, leaves an amount repre- 
 senting the net profits of working, after providing for the 
 maintenance of the tenant's stock. 
 
 section viii. 
 Tenant's Profits upon his Stock. 
 
 The amount representing net profits (a) is the basis of the 
 tenant's estimate of rent that he can give, it is also the basis of 
 the estimate of the landlord, as to the rent he would be willing 
 to receive ; there are of course two parties to a contract, and 
 the oscillation between supply and demand will of necessity end 
 in equilibrium, the tenant wants to take and occupy advantage- 
 ously as much as the landlord wants to let ; the tenant will not 
 take without a fair profit upon the capital he has to bring into 
 the concern, nor will the landlord let without a fair profit upon 
 his. What does the tenant do for this ? He gives his whole 
 time and skill to the superintendence. If he did not give his 
 own time, but employed a bailifi^, the farm would still command 
 the same rent, but he would only get probably his 6 or 10 per 
 cent. ; he would have his bailiff to pay, and the outlay in other 
 respects would be heavier. (Read what the late Mr. Pashley, 
 the Assistant Judge of Middlesex Sessions, says), — 
 
 " So, in the great business of farming throughout the 
 " country, make the farmer a proper allowance for his personal 
 " skill and labour, and there remains to him, for the use of his 
 " capital, after payments of all his working expenses, and of 
 
 (a) The profits of any business is the measure of its value, not the gross 
 receipts. 
 
93 
 
 " his rent, probably less tban six per cent. Any improvement 
 " which should substantially increase this amount of tenant's 
 " profits on his capital would inevitably lead to an increase in 
 " the sum paid by him as rent. I am acquainted with oue case 
 " of a farm, let a few years ago at £400 a year, which the owner 
 " has taken into his own hands, and has occupied with a tenant's 
 " capital of £3,000 ; the farm has been improved, and would 
 " now let at £450 a year; under a very vigilant and active 
 " management the farm now produces, after allowing for the 
 " whole skill and labour employed, £600 a year as a return for 
 " all the capital employed in the occupation, that is, £450 a 
 " a year (at which sum the farm would certainly let) for the 
 " landlord's capital invested in the land, and £150, or five per 
 " cent, only, for the tenant's capital invested in the occupation." 
 And he says elsewhere, 
 
 " The current price of the stock in a railway is, I think, an 
 
 " exact measure of the expected return of (a). 
 
 " No evidence was given respecting the proper amount of 
 " profits to be allowed in respect of the capital needed for such 
 " an occupation. The learned counsel on both sides stated that 
 " they left that amount, without either evidence or argument 
 " on the subject to my decision. I have considered the matter 
 '' fully, and have had occasion to do so on many former occa- 
 " sions, and I think it right to state the ground of my decision. 
 " The occupier has already obtained a specific allowance 
 " in the ascertainment of his net receipts, of all outgoings 
 " needed to provide for every risk, actual or calculable that 
 " could be named, and to provide Jar the proper remuneration 
 " of all shill and labour of directors, superintendents, and 
 " other representatives of the sup-posed tenant. What I have 
 " to allow, therefore, is simply the proper rate of tenant's 
 " profits, in respect of the employment of his capital. And the 
 
 («) Probably interest upon cost. 
 
94 
 
 " question is, for what per centage of expected dividend would 
 " capital be offered at the present time for employment in the 
 " business of occupier of this line of railway ?" 
 
 So again with shopkeeping. Mr. Pashley says " a retail 
 " country shopkeeper gets as much as 40 or 50 per cent, ou 
 " a great part of his wares. The answer, as old as the work of 
 " Adam Smith, is, that such 40 or 50 per cent., wherever it is 
 " found, means a difference of 40 or 50 per cent, between whole- 
 " sale and retail price, and that the shop, rent, and shopkeeper's 
 '' skill and labour are all provided for out of the difference in 
 " price in question." 
 
 In ascertaining the percentage of tenant's profits, it is fre- 
 quently assumed that the tenant has not the money, and, 
 therefore must borrow it, and pay interest for the same, but 
 there is no real reason for this assumption. This tenant is 
 hypothetical, why should not those persons who are assumed to 
 be the lenders, be considered as the tenants, why should they 
 be deemed to be satisfied with 4 or 5 per cent, upon such 
 security as the tenant can give them, when the tenant is to be 
 entitled, according to the company, to 10 or 15 per cent., when 
 the security is the net revenues of the company. 
 
 The security of the the tenant, which he can give to the 
 person of whom he borrows the money, can only be derived 
 indirectly from the company's security to himself. Why should 
 one be satisfied with 4 or 5 per cent, interest on an indirect 
 security, when the other is to have 10 or 15 per cent, on a 
 direct security? And especially it must be recollected that 
 every expense, actual and contingent, is allowed in the ac- 
 counts. Directors and management are all allowed and paid 
 for, compensation for risks and casualties, losses by trade, bad 
 debts, the reparation and replacement of the tenant's stock are 
 all provided for, so that all the skill and labour (a) which a 
 
 {a) Make the deductions for skill and labour, and, a shopkeeper capitalist, 
 in a country town, gets for his mere capital but little more than the ordinary 
 
95 
 
 tenant gives to the management of a concern, and which may 
 entitle him to some 20 or 25 per cent., are ah'eady included in 
 the accounts, and are allowed for. 
 
 The question, therefore, really left to the quartar sessions is, 
 not what profits a farmer is entitled to upon the farming stock he 
 brings to the farm ; not what profit, a small country shopkeeper 
 would require, who, devoting his whole time to the business, 
 and giving his own skill, would expect out of the profit, sufficient 
 to pay his house rent and to keep himself and family; not 
 what a skilled mechanic would expect as profit upon his capital, 
 who would work himself and direct the working of two or three 
 others ; and not even what a capitalist would expect, who 
 bringing in a large capital, would, in any business, superintend 
 and direct the labours of many subordinates (though the per- 
 centage for profits would in this last case he much lower than 
 in the former) ; but what profits any one is entitled to upon his 
 capital merely 1 That the rates of profits must vary reversely 
 with the extent of the business is evident, when it is considered 
 that the work done in all businesses consists of the superin- 
 tendence or skilled direction of the principal, and the work 
 done by those under him. The wages paid to the latter is 
 the principal part of the required capital of a manufacturer. 
 The charges he makes for the work done includes his profits 
 upon the capital or wages, and also his own payment for 
 skilled superintendence, the latter may be considered a fixed or 
 constant quantity (varying with the skill of the individual, but 
 not varying in the case of the same party with the number of 
 men in his employ), the former varying with the numbers 
 employed, consequently as the payment for the skilled labour is 
 not diminished in proportion to the wages capital, the fewer 
 the workmen, or 'the smaller the business, the greater must be 
 the proportion of the skilled labour to the wages capital, and 
 
 profits of stock. It is his sicill and labour that constitutes all the difference 
 between wholesale and retail prices, 
 
consequently, a higher percentage measured upon the wages 
 capital must obtain for the two. Hence the smaller the busi- 
 ness, the greater the tenant's profits upon the capital ; and the 
 larger the capital, the smaller in proportion the allowance for 
 skilled labour, as compared with the wages capital, and, con- 
 sequently, the smaller the percentage of profits upon the 
 capital; in fact, increase the wages capital indefinitely, without 
 increasing the skilled labour (that is, the skilled labour of the 
 principal, the skilled labour of all the subordinates being in- 
 cluded in the wages capital), and you reduce the profits upon 
 the wages capital to a minimum ; to something above, but really 
 inappreciably above the interest upon capital without skilled 
 labour. What does Mr. Pashley say upon this subject ? 
 
 " The subject of the proper amount of tenants' profits to be 
 " allowed as the return for capital employed, mainly in the 
 " business of a carrier on a line of railway, does not fall pro- 
 " perly within the range of legal knowledge. But since both 
 " parties in these appeals have expressed a wish that I should 
 " deal with the question on my own personal views respecting 
 " it, I shall, therefore, do so. The question is one purely of 
 " fact, and he who is to decide it should understand something 
 '' of what has been written respecting capital and labour, profit, 
 " and rent, from the time of Adam Smith to that of Mill ; and 
 " still more, he should know what is the ordinary profits of 
 " stock, as now obtained by its employment in the various 
 " forms of industry now exercised in this country, and, most of 
 " all, what is, in fact, at present prices, the ordinary profit of 
 " stock now invested in railways. 
 
 " Although all calculable risks have been calculated and 
 " allowed for, including risk of injuries to buildings, risk of bad 
 " debts, &c., &c., yet there are undoubtedly some risks incident 
 " to the carrying on of the business of a railway company which 
 " cannot be calculated. The risk of European war, or that of 
 " a bad harvest, or of great commercial depression, even with- 
 
97 
 
 " out war, must have some effect on the estimated value of the 
 " occupation of a railway company. All these risks have some 
 " effect also, even on the three per cents., and the risk of a had 
 " harvest is a much more serious matter for capital invested in 
 " farming throughout the country, than it is for any other 
 " forms of investment. Probably the return of profits on rail- 
 " way property is exposed, in respect of risks, which cannot be 
 " calculated, to less risk by far than that of waterworks' com- 
 " panics, or dock companies. 
 
 " Capital invested in the business of a railway company is, 
 " probably, at least, as safe as that in dock companies, canal 
 " companies, waterworks companies, gas companies, and joint- 
 " stock banking companies. If the price current of capital 
 " stock of such companies be referred to, it will be found to 
 " range at the present prices of the capital stock, and with the 
 " present dividends of such companies, at from 5 to 6 per cent, 
 " The average of such returns is nearer to five per cent, than 
 " six. iVbw railway property is liable to less fiuctnation than 
 " some oj the other properties referred to. We should, there- 
 " fore, expect, perhaps, to find the average return for stock 
 '' invested in railways at the now current price of such stock 
 " receiving a return of not more than five per cent. And such 
 " is the fact. In this very line (a) on which the return of 
 " profit in the last two years, to all holders of its stock, has 
 " been rather less than five per cent., the present price of the 
 " stock is a little above par. The capital now invested in the 
 " line is so invested on the expectation of a return of less than 
 " five per cent. It may justly be said that to some extent in- 
 " vestment takes place which is meant to be permanent, and 
 " under the hope of a future increase in the returns. This is 
 " so ; but this is a small element, and it will be found on exa- 
 
 (a) North London Railway. 
 H 
 
98 
 
 " mination, that in any given state of the money market, and at 
 " a given price of the funds, the amount of dividend of a rail- 
 " way company has long been, and is, the main and' substantial 
 " consideration. Any increase in the weekly returns of traffic 
 " on any any given line, at once exercises an influence on the 
 " price current of the shares. It is necessarily to the trade 
 " carried on that the capitalist looks when he invests his 
 " money. Let us see how many years' purchase of the present 
 " dividend of a railway company does a capitalist give in order 
 " to become a railway proprietor. 
 
 " An expectation of future increase in the value of a line of 
 " railway may have some influence in drawing capital into the 
 " concern. Although any change in the weekly returns of 
 " traffic of a line very soon affects the price of shares, and 
 " shows that the capitalist is well aware that he is investing 
 " in a trade, and that his returns depend on such trade, yet, 
 " it must be owned that the expectation of permanent stability 
 " and even improvement in the value of railway property, may, 
 " in many instances, have contributed to bring into English 
 " railways the £500,000,000 of capital now invested in them. 
 " To some extent, therefore, the current price of railway stock 
 " will, upon the average, be higher than it would be if the 
 " present amount of dividend alone were looked at in pul'- 
 " chasing such stock. I think, therefore, that the present 
 '' tenant's profit should exceed the five per cent, on the expec- 
 " tation of which money is now invested in the ordinary stock 
 " of railways." 
 
 And, in conclusion, he measures this excess and says, 
 " upon the whole I am quite satisfied that 6 per cent. 
 '' as the tenant's profits on the capital employed by him is all 
 " that can be allowed." It was a question at that time for Mr. 
 Pashley, before whom the North London St. Pancras case (a) 
 
 (rt) 32 L. J. (N. S.) M. C. 146. 
 
had been heard, by consent of both parties, who proffered no 
 evidence of the subject, to say what per centage of tenants' 
 profits (including interest) should be allowed, and from the 
 elaborate written judgment which he prepared, but which his 
 untimely death prevented his delivering-, there is little doubt 
 about his having most carefully weighed and considered the 
 subject (a). It will in every case be a question for the particular 
 quarter sessions before whom the appeal is being heard. There 
 was another elaborate decision given by the late recorder of 
 Leeds, T. F. Ellis, Esq., in the matter of an appeal by the 
 Midland Railway Company against the overseers of Armley 
 which bears fully upon this point (J). Mr. Ellis says, in the 
 course of bis judgment, " the next item I will consider together 
 " with the item which is next but one to it in the estimate of 
 " the appellants. They say, that the value of the money which 
 " a supposed tenant of the line mould have to invest in loco- 
 " motive stock m £49,149 ; and such a tenant, they think, would, 
 " in estimating the rent which he is to pay, expect to be 
 " allowed — First, 5 per cent, interest on this sum, and then 
 " 15 per cent, for tenants' or trade profits. Secondly, they say 
 " that, if 5 per cent, is allowed for interest, no more than 10 
 " per cent, ought in addition to be allowed for profits. As to 
 " this, I cannot doubt, that the allowance which they propose 
 " is extremely liberal. A very short consideration of the prin- 
 " ciples upon which such deductions are allowed will, I think, 
 " show this. 
 
 " The subject of the rate is the value of the occupation. 
 " When we ask, what is the rateable value of any subject of 
 " occupation, we ask, in effect, what is it worth while to give 
 " for the permission to occupy ? This is what the legislature 
 " meant in proposmg, as a test of rateable value, what a tenant 
 
 (a) Mr. Pashley died in 1859. 
 (6) Hodgson's Summary of Rating, p. 94. 
 H 2 
 
100 
 
 " would pay as rack-rent. The tenant pays for the permission 
 " to apply his capital and labour to the subject of occupation 
 " and take the resulting profits. But, in applying this test, we 
 " must exclude any consideration of the greater or less ease in 
 " obtaining the capital required. The question is not, whether 
 " a tenant can easily be found ? The tenant is introduced 
 " merely as a hypothetical test of the value of the right to 
 " occupy. "We must, therefore, take it as if we had tenants 
 " ready with unlimited capital, or (which, in practice, is the 
 " same thing), as if there were a large joint stock company 
 " Intending to invest their money in the speculation." 
 
 " Now, the considerations which determine (independently 
 " of local and accidental disturbing causes, which of course 
 " are not now to be taken into account) the rent which a tenant 
 " would pay for the right to occupy, are — can he employ his 
 " money at better interest ? Can he employ his labour at better 
 " profit ? In other words, can he, by employing the same 
 " money and labour, and at the same risk, get more return 
 " than, by giving the rent which is asked for, he will get here ? 
 '' The answer will be determined by the average value of 
 " capital and labour in the country, including the consideration 
 " for risk. 
 
 " It does not much signify, therefore, whether we first allow 
 " interest for the money and then allow for the value of the 
 " labour and risk, or put the two together, and call them trade 
 '' or tenants' profits. But it is clear that what the appellants 
 " in effect assert is, that money applied to the hire of this 
 ■ " railway ought to produce 20 per cent profit ; and that the 
 " respondents are content to allow 15 per cent. 
 
 " It is to be observed here, that the risk is very little. There 
 " is no specific charge made for insurance ; but the insurance 
 " of the buildings must have been taken into account in the 
 " estimate of the rateable value of the buildings; and the risk 
 " upon the rest must, from the nature of the property, be very 
 
101 
 
 *' slight ; less certainly, veiy much, than in the case of standing 
 " crops, ships, cotton, goods, ^c. 
 
 "Then-, as to the labour, that has been already allowed for. 
 " The previous items include what, in the case of a farm, would 
 " correspond to the farmer's personal exertions in the tillage ; in 
 " the case of a ship, to the superintending; the details connected 
 " with the navigation ; in the case of a shop, to the trouble of 
 " providing the goods, regulating the business, superintending 
 " the clerks, and so on. That which in agriculture or trade takes 
 " up most of a man's time, is here done for the supposed tenant. 
 " In the consols, the interest now attainable is between 3J and 4 
 " per cent. (a). How much more labour and risk would a party 
 " incur by embarking his money in the hire of this railroad, all 
 " expenses being paid ? The trouble of taking the money from 
 " the clerks would be somewhat more; the risk of destruction is 
 " rather greater; and something must be allowed for the less 
 " facility of shifting capital, once so embarked, to any new 
 " investment. But when all these allowances are made, the 15 
 " per cent, rvhich the respondents propose to allorv, seems to me 
 "far to exceed what nwuld he suggested hy comparison with other 
 " investments. The 5 per cent, must therefore be struck off, 
 " only the £540 lis. U. allowed." 
 
 section ix. 
 Tenants' Capital. 
 
 Before disposing of this item of profits it must be mentioned 
 that the amount of capital that the tenant would require, and 
 upon which the percentage of profit could be calculated, is a 
 
 (a) The consols were at that time fluctuating between 84 and 85. They 
 are now at 93v 
 
102 
 
 vexed question. It is, like the items of expenditure, composed 
 of subordinate points of diflference. 
 
 First, as to the capital required over the whole system — com- 
 panies and parishes differ about this — they also differ as to how 
 properly to apportion the whole to the parishes. First, as to 
 the whole, what it includes. The companies, before the North 
 Staffordshire case (a), in spite of the Southampton case (5), con- 
 tended that almost everything but buildings, line, rails, chairs and 
 sleepers had to be taken by the tenant, and they still contend 
 that he has to take the fixed machinery in the workshops. The 
 parishes consider that the tenant has to take to nothing but the 
 moveable plant, tools, furniture and stores (c). 
 
 And the two, not content with differing as to what items the 
 capital should include, differ about the items. And unfortu- 
 nately, the figures which represent them are so large, that it 
 becomes important to show which are right; take the last item, 
 " stores," for instance ; railway companies are landlords as well 
 as tenants, and they are obliged to have on hand large stores 
 in both capacities — they have to maintain the line, the buildings, 
 the rails, the sleepers, the chairs, &c., and doing this as land- 
 lords, the parishes say they the tenants would not be called 
 upon to take to them ; moreover, they differ, companies and 
 parishes, as to the amounts to be adopted for each item, in 
 arriving at the tenants' capital. 
 
 The court of Queen's Bench in the case oiReg.v. Great Western 
 Railway Company {d), held that the sessions need not go years 
 back to get at what each item actually did cost, but they were 
 to take the value ; unfortunately companies and parishes do not 
 
 (a) 30 L. J. (N. S.) M. C. 68. 
 (6) 20 L. J. (N. S.) M. C. 155. 
 
 (c) A recent decision in Essex, Reg. v. Overseers of Halstead, seems 
 to have thrown some doubt upon the matter. Justice of the Peace, June 
 15, 1867, page 373. 
 
 (d) 6 Q. B. 179 ; 15 L. J. (N. S.) M. C. 80. 
 
103 
 
 agree about this. Value admits of a wide difference of opinion. 
 The company ask for a yearly depreciation or for a fund to 
 renew and rebuild when worn out, and this amount the parishes 
 say, is charged and allowed in the company's accounts, and 
 they contend that as this renewal is not all done yearly, but 
 some fraction of the whole done one year, another the year 
 before, another the year before that, that the whole plant 
 now in use is in various stages of depreciation, of which the 
 centre of the series is the mean. The higher the rate the com- 
 panies fix this yearly depreciation at, the more they must dimi- 
 nish at any one time the value of the stock, and if they wish 
 to keep up the value of the stock, the lower they must fix the 
 yearly depreciation at. Companies wilfully shut their eyes to 
 the horns of the dilemma, and try to do both — adopt a high 
 rate of yearly depreciation, and at the same time endeavour 
 to increase the value. And upon this as much as any other 
 item the contending parties join issue. 
 
 Sometimes the companies' witnesses, from the general 
 experience, they allege they have already had in other cases 
 assume that the amount of capital a tenant requires is about 
 equal to the gross receipts ; and they produce certain railway 
 accounts, which, showing the half-year's receipts, and the 
 amount spent in moveable plant, appear to corroborate this view. 
 It must be understood, however, that the amount in the account 
 is not the value of the stock in use. It is the cost of all the 
 plant that has been brought upon the line and charged to 
 capital account since the opening. It may or may not represent 
 the stock in use. Some of the stock may have been worn out, 
 and, if replaced with new, and charged to capital, still the cost of 
 the old wornout stock would remain, would not be written off. 
 But it may be that only the excess of the cost of the new would 
 be charged to capital. In the latter case, the amount of the 
 moveable plant in the capital account would, but in the former 
 case, would not, correctly represent the cost of the stock 
 in use. 
 
104 
 
 When the fair cost of the stock, such as similar stock would 
 cost at the time of the rate, taken at an average, (not what it 
 did cost, for, having been purchased at various periods, the 
 prices might have varied considerably,) has been ascertained, 
 then the value to sell has to be ascertained ; and herein arises 
 a fresh difficulty. Is it to be, to sell to a tenant who would 
 remove it elsewhere, or to a tenant who would succeed in the 
 occupation ? Is it to be considered as sold under a forced sale, or 
 under a valuation as between one party willing to sell and 
 another to take, the purchaser becoming the incoming tenant? 
 and under any one of these conditions, given the ages and fair 
 cost of the stock, how is the present value of the whole to be 
 ascertained ? 
 
 Having settled, by no means an easy matter, what the 
 tenant's capital, over the whole system, ought to be, the next 
 question is, as usual, how is it to be allocated ? 
 
 Is it to be in proportion to receipts ? Is it to be according to 
 train miles, or how otherwise? 
 
 Companies, at times, not only say that the entire receipts are 
 about equal to the entire tenants' capital; but they go further, 
 and say, that given the mileage receipts in a parish, the tenants' 
 capital due to them are about equal to them. They do not, 
 however, say so on a branch or non-paying line. Parishes do not 
 assent to this ; they say, that the capital required depends upon 
 the work done. They contend that the work done is by no 
 means in the same ratio as the receipts earned; that some 
 miles produce very large gross receipts, with comparatively 
 little work done; and that other miles require a greater amount of 
 work to be done (i. e. train miles run) to earn but trivial receipts; 
 and they contend that if the imaginary tenant were called upon 
 to apportion his entire stock for use along the entire line, he 
 would apportion it according to the trains run, and not according 
 to the monies earned. There are conditions under which he 
 might require nearly as much stock to work a bad paying 
 
105 
 
 branch as a good main line ; as in the one case the trains which 
 would have to run all through might be all but empty, and in 
 the other all but full ; and in running a train on the main line, 
 not intersected by a branch, the trains at the non-traffic end 
 would have to be made up large enough to accommodate the 
 traffic at the good traffic end. The fares received for the 
 people inside would not increase the work done, at least, only 
 so far as those fares necessitated an increase in the number of 
 carriages ; and to this extent only the allocation of the entire 
 tenants' capital per train mile would not be strictly correct. 
 The true principle of allocation lies somewhere between the two, 
 — ^between that of train mileage and that of receipts. Subdivide 
 the tenants' capital into passenger and goods engines, and 
 passenger and goods carriages and waggons, and allocate the 
 former per passenger and goods engine miles respectively, and 
 the latter by passenger and goods carriage and waggon mileage, 
 as in the case of the carriage and waggon expenses, and you 
 have a principle of allocation which could safely be admitted by 
 both parties. 
 
 The amount of tenants' capital properly due to the parish, 
 and the proper percentage of interest and tenants' profits upon 
 that capital having been applied to it and deducted from the 
 previous balance, the remainder represents the gross rental, 
 mixed up with the rates and taxes payable by the tenant, and 
 to be calculated upon the net rateable involved, of what is due 
 for the line in the parish, and for the stations throughout. 
 
 SECTION X. 
 
 The next item to be deducted is that of Statutables for main- 
 tenance of may, works, and station, forming the largest 
 portion of the £rst item usually in the company's accounts (a). 
 
 (a) Vide section 1, page 85. 
 
106 
 
 SECTION XI. 
 
 The next item of deduction is that which may be called the 
 Station Assessment Contributive Fund. The parochial receipts, 
 including as they do, and, according to the decision, as they 
 are bound to do, all station terminal charges, must, of necessity, 
 include a portion belonging to the stations, which, of course, 
 have to be rated to the parishes where they are situated j 
 this portion, whatever it may be, must be deducted, and 
 the balance will represent the net or rateable value of the 
 line, together with the local rates payable upon the line, 
 and the parish share of the average rates throughout payable 
 upon the station assessment contributive fund. It is usual to 
 allow 4 or 5 per cent, upon the receipts in the parish to get at 
 the contributive fund due from the parish. If this fund is not 
 considered to include the average rates and taxes mixed up 
 with the net rateable value, then the average per-centage of 
 rates and taxes over the whole system ought to be deducted 
 also. A question arises here, and the point was raised in the 
 case of the Queen v. North Staffordshire (a), but never satisfac- 
 torily answered, — are the actual station assessments over the 
 whole system to be provided for by the contributive fund to be 
 obtained from every parish, or is an estimate to be made of what 
 the assessment should be, and the fund to be considered to be 
 raised to meet that? Hitherto, both parties, appellants and 
 respondents, have acquiesced in the uncertain position of the 
 law, that the last decision has left the matter in ; but more 
 stations, and larger ones, are being frequently built; and as 
 each station is now being valued on a higher scale than they 
 used to be, the question is becoming every year a more important 
 one, and will require to be re-heard. The question was, " whether 
 
 (a) 30 L.J. (N. S.)M. C. 68. 
 
107 
 
 " the deduction to be allowed in respect of the stations, build- 
 " ings and sidings, should have been ascertained by taking the 
 " rateable value, at which the same mere assessed to the relief 
 " of the poor, or by allowing 6 per cent, upon the original cost of 
 " construction, as contended for by the appellants, or how other- 
 " wise a deduction should be made in respect of the said stations, 
 " buildings, and sidings." And the answer was, " As regards 
 " the fourth question, we are of opinion the deduction to be 
 " allowed in respect of station, buildings, and sidings, must be 
 " calculated on the actual value at which they ought to be 
 " assessed, and not upon the original cost of construction," 
 
 This is only an answer to the two modes suggested. 
 
 Is the amount at which they are actually assessed to be rated ? 
 No. Is the amount to be calculated upon the actual cost? 
 No. It is no answer to the 3rd question put, " If neither of 
 " these two modes, how otherwise ?" " The deduction mu^st he 
 " upon the actual value at which they ought to he assessed," 
 the court says ; but it does not state upon what principle they 
 ought to be assessed. 
 
 This station contributive fund being deducted, will leave the 
 net rateable value of the line mixed up with the local rates. 
 
 The simplest mode of ascertaining what these rates are is, to 
 say, as twenty shillings plus the rates upon 20s. is to the rates 
 upon 20s., so is the net rateable in the parish plus the rates, 
 to the rates upon the net rateable. These rates, thus ascertained, 
 being deducted, will leave the net rateable required. 
 
108 
 
 CHAPTER V. 
 
 ASSESSMENT OF GASWORKS, 
 (AS A WHOLE.) 
 
 The principle adopted in ascertaining the net rateable value 
 of gasworks is necessarily the same as that of railways. The 
 gross receipts include the whole subject matter of the rate, and 
 have to be reduced by the usual deductions, as in the case of 
 railways. These deductions may or may not be subjects of dis- 
 pute according to what they are stated to include, but they are 
 of necessity of the same nature as those of railways, and are to 
 be treated in a similar way. 
 
 The following estimate, made to ascertain the rateable value 
 of the entire property of the Cambridge Gas Company, which 
 extends through several parishes, will furnish a good illustration 
 of the mode in which the rateable value of similar properties is 
 usually worked out. 
 
 CAMBRIDGE GASWORKS. 
 
 Estimate of the net Bateable Value of the Cambridge Gasmtrhs. 
 
 Thousand. 
 5,000 tons of coal, producing 9,500 feet of gas per ton 47,500 
 Deduct for leakage and home consumption 18 per cent. 8,550 
 
 Number of thousand feet of gas disposed of - - 38,950 
 
 For which the gross rental realized is, say - - £10,433 
 
109 
 
 
 Brought forward - 
 
 - 
 
 £10,433 
 
 
 
 
 
 
 Deduct Expenses. 
 
 
 
 
 
 £ s. d. £ s. d. 
 
 Per Ton. 
 Cost of coal per ton - 16 
 Less residual products 
 
 disposed of, viz. ; 
 Coke - - - - 7 
 
 
 
 
 Breeze 
 
 - 3 
 
 
 
 
 
 Tar and 
 liquor 
 
 ammoniacal"! n fi 
 
 7 
 
 9 
 
 For the who] 
 concern. 
 
 £2,063 
 
 le 
 
 
 Net cost of coal - 8 
 
 3 
 
 
 
 
 Lime, say- 
 
 - 
 
 - 100 
 
 
 
 
 
 
 Bad debts 
 
 - 
 
 - 100 
 
 
 
 
 
 
 Tradesmen's bills 
 
 - 
 
 - 1,637 
 
 
 
 
 
 
 Wages - - - 
 Salaries - - . 
 
 - 
 
 - 1,227 
 563 
 
 
 
 
 
 
 
 
 Repairs - - - 
 Mains - - - 
 
 - 
 
 - 249 
 
 - 147 
 
 
 
 
 
 
 
 
 £6,086 
 
 
 
 
 
 Gross receipt - £10,433 
 
 
 
 
 
 Expenses - 6,086 
 
 
 
 
 
 
 Net earnings £4,347 
 
 
110 
 
 Net earnings 
 Tenants Capital, say £4,000 
 20 per cent, upon £4,000- 
 Renewals and reproduction 
 
 £ s. d. £ 
 £4,347 
 
 £800 
 250 
 
 ■PI 050 
 
 s. 
 
 
 
 
 d. 
 
 
 
 
 
 
 
 Less rates and taxes 4s. in the £ 
 
 £3,297 
 550 
 
 
 
 
 
 
 
 Net rateable . . - . 
 
 . - - £2,747 
 
 
 
 
 
 la the case of gasworks, as in that of railways, the several 
 deductions and allowances are constantly in dispute, more parti- 
 cularly the allowances. 
 
 Note. — It must be understood that this is a parish estimate 
 made under unfavourable circumstances, and in the absence of 
 the requisite data of actual receipts and actual expenses, which 
 the company could have supplied ; and that, consequently both 
 the items and the prices are debateable. So that this example 
 can only serve as an example generally of the mode in which 
 these cases are treated. In fact, in gas estimates, each case stands 
 more particularly upon its own merits, and must be treated more 
 carefully, according to its own peculiar circumstances, than in 
 railway estimates. 
 
 Moreover, the business itself of a gas company is never sta- 
 tionary, and the property which is the subject matter of the rate 
 is constantly increasing; the extension, however, not being such 
 as to warrant at all times an increase of capital, and being met 
 by disbursements charged against the revenue account. Now 
 the difficulty of separating between reparation and enlargement, 
 especially in the absence of the actual items of expenditure, is 
 very great, at the same time that some approximate separation 
 becomes all important to the parishes. 
 
Ill 
 
 CHAPTER VI. 
 
 ASSESSMENT OF WATERWORKS, 
 (AS A WHOLE.) 
 
 The following estimate of the rateable value of the station 
 works, mains, and pipes belonging to the West Middlesex 
 Waterworks Company lying within the parish of Hampton-on- 
 Thames, made in the year 1856,* will serve as an example of 
 the way in which these estimates are framed. In principle 
 they differ little from the estimates of gasworks and railways. 
 In case of gas companies, coal is manufactured into gas at the 
 station works ; in that of water companies, impure water, by sub- 
 sidence and filtration, is converted into pure; and in both cases, 
 when the manufactured article is complete, that article is conveyed 
 by the mains and pipes from a place where it has little or no value 
 to a place where it has, the mains and pipes being virtually a 
 hollow railway or canal over which the article not wanted in one 
 place is conveyed to another where it is. Wherein, then, does 
 the transit through the mains and pipes differ from that over the 
 railway or along the canal ? 
 
 In the case of railways or canals, goods are conveyed from the 
 places where they are not wanted to be, to places where they are, 
 and passengers also by means of the railways are conveyed from 
 places where they have no value, so to speak, to where they have, 
 and in such case, whether of goods or passengers, the service 
 rendered is measured by the transit charges, which in their turn 
 are the measures of the beneficial occupation of the land over 
 which both goods and passengers are conveyed ; and surely the 
 mains and pipes of gas and waterworks should be placed under 
 the same category as the rails of a railway. 
 
 • The author was professionally engaged in this case. 
 
112 
 WEST MIDDLESEX WATERWORKS. 
 
 Estimate of the rateable value of the Mains and Pipes lying 
 within the Parish of Hampton. 
 
 Gross receipts for the year ending the 30th 
 
 September, 1855 - - - . £70,889 5 5 
 
 Deduct. 
 Directors', auditors', officers' 
 
 salaries, collectors' poundage, 
 
 office charges - - -£6,426 16 1 
 Coals, workmen's wages, engine 
 
 house charges, street charges, 
 
 and other expenses - - 9,157 19 5 
 Rent, rates, and taxes - - 
 
 Law, &c. - - - - 
 
 £15,584 15 6 
 
 Deductions and Allowances. 
 1. Depreciation of pipes, mains, 
 
 and works, say - - - 1,000 
 
 Tenant's Capital. 
 
 Total amount of expenditure 
 
 for the year, say £24,000 
 
 i thereof - £12,000 
 
 Stores - - - £2,000 
 
 £14,000 
 5 per cent, interest upon 
 
 £14,000 - - 700 
 
 10 per cent, tenant's profits - 1,400 
 
 Total expenses and allowances - £18,684 15 6 
 
 £52,204 10 
 Then taking the rates at 4s. in the £ - - £8,700 
 
 Total rateable value - £43,504 10 
 
113 
 
 CHAPTEU VII. 
 
 Gas and Water Companies. 
 Subdivision among Parishes. 
 
 As the court of Queen's Bench has in every respect placed these 
 companies in the same category — now giving a decision affecting 
 one — now affecting the other, but in every case equally applicable 
 to both, the cases will be given as they were decided, whether they 
 be gas or water. The first important case was that of Rex v. The Amwell 
 The New River Company (a). Where the question was, whether case. 
 Chadwell Mead, in which was the spring which supplied the New 
 River, should be rated by the parish of Amwell at £5 or £300 ? The 
 sessions had found that if the value of the spring to the New River 
 Company was to be taken into consideration, the amount of the rate 
 should be £300; if not, and if the value of the bare land only was 
 to be taken, then the amount should be £5. 
 
 The court of Queen's Bench held that the value of the spring wus 
 to be taken into account, and therefore gave judgment in favour of 
 the £300. 
 
 I have inserted this case, not that it has been supposed to have had 
 anything to do with the subdivisions of the rateable values of the 
 properties of Gas and Water Companies among the several parishes 
 in which the properties are situated, but because it is the case con- 
 stantly referred to when any question of contributive value is started 
 — by the one side, as the decision laid down years and years ago, that 
 there could be, and in the case of Amwell, there was, a value over 
 and above the local value, and by the other side, as simply enunciating 
 that as the sessions had found the spring itself was of a certain value 
 there within the mead, that value was to be added to that of the 
 mead without it. 
 
 Mr. Justice Wightman in the judgment given in the West Mid- 
 
 (a) 1 M. & S. 603. 
 I 
 
IK 
 
 dlesex case (a) in 1859, curiously enough refers to Lord EUenbo- 
 rough's decision in the New River case, and says — " This case has 
 " been supposed to sanction the notion that the parish of Amwell 
 '' was entitled to rate land in Amwell by reference to pi-ofits made in 
 " Islington or elsewhere. Probably the parish oiBcers and sessions 
 " may have included a reference to those profits in the amount, but 
 " the court entirely ignores any such reference, and takes the ques- 
 " tion to be, whether the rate is to be on the two acres of mere land 
 " according to the value of the land of that kind in Amwell, or with 
 " reference to its value in the occupation of the company, ^^ith the 
 " power of using it for their purposes, and with capital laid out on it 
 " making it fit for those purposes." Lord EUenborough confines his 
 judgment expressly to the local value in Amwell, for he says, 
 " The mater has a certain ascertained local value at thcfovntain head ;" 
 — if it has, it is rateable for that value irrespective of profits which 
 may be derived elsewhere from distribution through pipes. 
 
 It is clear, fiom his Lordship having referred to and dwelt so 
 long on this case, that different inferences had been drawn from 
 the decision of Lord EUenborough in 1838, and that the court of 
 Queen's Bench in 1859, was desirous of correcting whatever erro- 
 neous notions that appeared to prevail upon the subject. 
 
 Whether conclusively or not, I must leave the reader to judge, for 
 from what quarter any value can be obtained for the spring, except 
 from the profits which are made elsewhere, it would be very difficult 
 to sar, so that after all, perhaps the question really at issue in the 
 Amwell case, is a matter of apportionment between several parishes, — 
 given the rateable value of the New Biver Company's property as a 
 whole, what share of that whole belongs to Amwell ? and if the profits 
 in Islington are the local takings, less the local expenses, then these 
 profits must be chai'ged with a proportion for Amwell, otherwise, as 
 what would be true of Islington, would be true also of Pen- 
 tonville and everywhere else, there would be no sum from which the 
 increased local value of Amwell could be made up. In truth, what 
 is the principle of directly and indirectly productive values and the 
 mode of apportioning the whole value between them, but that of 
 
 (fl) 28 L, J. Rop. (N. S.) M. C. 135. 
 
115 
 
 charging- the profits upon the productive portions with a coutributive 
 amount for the unproductive. 
 
 The local value of the Amwell spring would be nil were it not for 
 the profits which are derived from it everj where, and which profits 
 everywhere are reducible pro rata, to make up " the ascertained 
 local value at the Amwell fountain head." 
 
 The next case of note was that of The Queen v. Cambridge Gas Cambridge 
 Company {a), which was decided in the year 1838. In this case there Gas case, 1838. 
 were several questions raised, which ought not to have been raised 
 then, and are not likely to be raised again — the first, whether the 
 sessions finding, as a fact, that the whole of the property would 
 let to a responsible tenant for £2,400, the principle contended for by 
 the Company of showing a rateable value of £230 could be correct ? 
 The court of course said No. 
 
 The second. The court being in favour of starting with the rent 
 the premises would let for, was — were the company not entitled to 
 statutables 1 Yes, of course. 
 
 The third was, — whether from the rent actually found a sum of 
 £600 for the profits in trade of the Company was to be deducted to 
 get at the rent. The answer was of course. No. 
 
 The fotirth question was, — whether the Company were entitled to 
 deduct from what was found in the case to be actual rent of the 
 whole, the annual value of the mains and apparatus within certain 
 colleges which are not rated to the relief of the poor 1 The court said 
 Yes. 
 
 The whole property, including the portion required for the colleges, 
 is found in the case worth so much. Under ordinary circumstances, 
 the whole would be chargeable with rates, but that portion of the 
 whole which belongs to the colleges being not rateable, rates can only 
 be imposed upon the remainder, and as the rates would be chargeable 
 upon the amount in the rate-book, that amount ought to be the re- 
 mainder and not the whole. 
 
 The next and last question was, — after deducting for the mains and 
 pipes in the college portion, and for the station works in the parish 
 where situated, upon what principle ought the remainder to be dis- 
 
 (fl) 8 Ad. and E. 73, and S. C. 7 L. J. Rop. (N. S.) M. C. 50. 
 
 I 2 
 
116 
 
 tributed among the parishes through which the mains and pipes 
 are laid ? 
 
 Before giving the answer it may be as well to consider a few facts 
 connected with the question. The station works are in one parish, 
 from which run large dead mains through some parishes, and sub- 
 ordinate mains through other parishes, gas being consumed in some 
 of the former, but in all of the latter. 
 
 The sessions were disposed to ignorethe mains and pipes throughout, 
 which would have exempted the dead mains from being rateable at 
 all, and have shut out the parishes which had only dead mains in 
 them from any portion of the rateable value of the whole, though 
 the only means by which the gas could be taken from the works to 
 the place of consumption was by means of pipes passing through 
 the parish ; and to distribute the remainder '' in proportion to the 
 " receipts for gas supplied in each parish.'' 
 
 The court on the contrary, and at variance with their later decisions 
 in the West Middlesex and Sheffield cases ignored the receipts, and 
 ruled not only that the sessions were wrong, but that the distribution 
 should be "in proportion to the quantity of apparatus situate in 
 " each parish." 
 
 Mile End Old In the year 1847, came the Mile End Old Town case (a). The 
 ifi^V *^^*'^' question raised here was simply a question of apportionment. It was 
 true that the Company endeavoured to get the court to rule that the 
 capital of the tenant should be calculated on the receipts ; but the 
 arbitrator, to whom the case was referred, having found that the 
 tenant's profits bore no definite proportion to the receipts, the court 
 of Queen's Bench seems to have confined themselves to deciding 
 upon the real question, that of apportionment. 
 
 The diflference between this and the Cambridge gas is in reference 
 to this question, and as to the findings. 
 
 The arbitrator in this case, for the first time, divides the whole 
 property into the indirectly and the directly contributive portions, 
 and among the indirectlj' contributive now classes the dead mains, 
 while in the Cambridge case, these dead mains were classed with the 
 receipts, and therefore were dealt with as directly contributive. 
 
 This difference of classification, small as it may appear at first 
 sight, is most important, for it has enabled the court to so far modify 
 
 (a) 10 Q. B. 208 ; and 16 L. J. Rep. (N. S.) M. C. 184. 
 
117 
 
 their judgment given in the Cambridge ease, as without reversal of 
 their ruling in that case, to do justice to all the parishes, in which the 
 property is situated. 
 
 The Cambridge case, placing the mains among the directly produc- 
 tive portions would, if the remainder had been made divisible in pro- 
 portion to receipts, have left out entirely the parishes in which no 
 receipts were taken. This would have been so manifestly unjust that 
 the court were bound to distribute the remainder by quantity of ap- 
 paratus, irrespective of receipts, making thereby the receipts vary 
 with the apparatus (which no arbitrator could ever find as a fact, 
 no more than any arbitrator could find as a fact that, as between 
 several parishes and the gas rental received within them, a tenant 
 could be found to pay rent to the parishes in proportion to the appa- 
 ratus, and not in proportion to the rental.) But the Mile End Old 
 Town case having transferred the mains to the indirectly productive 
 portion, parishes having only dead mains, as well as parishes having 
 station works, could obtain some portion of the rateable, whole, and 
 the remaining parishes taking receipts could then be better placed 
 under one category, viz., that of direct productiveness, furnishing 
 receipts by way of gas rental to the tenant, for which he would be 
 willing to pay rent to each of the several parishes in proportion to 
 the gas rental he derived within it ; and having found that whether 
 the subdivision of the directly productive portion was made in the 
 ratio of the net profits or of the gross receipts, or of the quantity of 
 mains and pipes, the result would be the same, the court were enabled 
 to uphold their previous decision at the time ; and to substitute in the 
 future the ratio of receipts universally true as a mode of subdivision 
 for the quantity of apparatus only occasionally so (a). The court 
 
 (o) In the case of The CheUea Waterworks Company v. The Overseers of 
 Putney,* argued before the court of Queen's Bench in 1860, the respon- 
 dents had ascertained the rateable value of the whole, then deducted the 
 value of the indirect portion, and afterwards apportioned the value that was 
 left in proportion to the apparatus and land in the several parishes. The 
 court held, — the findings of the arbitraor may have misled them, — that this 
 method, which is laid down in the Cambridge and Mile End Old Town 
 cases was incorrect. 
 
 * 27 L. J. Hep. (N. S.) M. C. 230. 
 
118 
 
 in their judgment say — " That of the three methods that should be 
 " selected which mould best show the rent to he expected in that part, 
 " if the work situate in the district were let separately," and after- 
 wards, in conclusion, "an apportionment according to the gross re- 
 " cei'pts in each district would he according to the rent to he expected 
 "from the part of this rateable subject situate in such district." 
 
 Lord Denman continues — " This apportionment is not at variance 
 " roith the grounds ofthejudgment in Regina v. The Cambridge Gas 
 " Light Company. There the court decided that the parishes in 
 " which the profits are received are not entitled to all the amount pro- 
 " duced by the rate, but that the parishes in which parts of the appa- 
 " ratus indirectly conducing to produce profit are situate are entitled 
 " to a proportion. The court also declared that the principle upon 
 " which the sum oj rateble value from the rates of all the parishes 
 " should be apportioned, is the same as that which has been applied 
 " to canals. By the method adopted in this case, the rateability of 
 " the portion of the apparatus indirectly conducing to produce profit 
 " is provided for, and the residue of the sum of rateable value is ap- 
 " portioned to those parts oj the apparatus directly producing profit, 
 " in analogy to the mileage proportionfor canals and railways. We 
 " have thus endeavoured to show, that the rule for ascertaining the 
 " value for separate rating ought to be applied as far as practicable 
 " to apportioning among separate districts a sum of rateable value 
 " arising partly in each." 
 
 West Middle- "^^^ '^^■^' '^^^^ of importance was decided in 1855, eight years after. 
 
 sex ease, 1855. It was an appeal by the West Middlesex against a rate made in the 
 parish of Hampton (a). Several of the water companies of London, 
 who obtained their water from the Thames, being compelled by Act 
 of parliament to obtain it above the rise of the tide, three companies. 
 The West Middlesex, the Grand Junction, and the Southwark and 
 Vauxhall built large pumping stations at Hampton-on-Thames (which 
 is above Teddington Lock) and laid down through Hampton and 
 Richmond and other parishes adjoining, 36-inch dead mains from 
 the works to the metropolis. 
 
 (a) Reg. v. West Middlesex, 28 L.J. Bep. (N. S.) M. C. 135, and 1 Ellis 
 and Elli=, 716. 
 
119 
 
 These mains were generally laid in the high road. 
 
 The first contention of the companies with the parishes through 
 which these mains passed was, that being in the high roads, they 
 were not rateable at all. And this was the first point raised in the 
 case. The court of Queen's Bench at once ruled that they were rate- 
 able. The mains being rateable, the next point was how were they 
 to be rated. The parish contended that the water consumed and 
 paid for in the metropolis, having to pass through this main, the 
 main was analogous to the thick end of the railway telescope or to 
 the trunk of a large tree, through which trunk only the sap could 
 get to the branches, and that consequently the sectional area of the 
 trunk would exceed the sectional area of all the branches anywhere ; 
 or, which the parish contended, was the same thing, that the sectional 
 area of the main at Hampton was equal to all the sectional area of all 
 the subordinate mains and pipes anywhere, and therefore that the value 
 within the parish was, as regards the whole value, in proportion as the 
 length in the parish was to the entire length of the main from Hampton 
 to the metropolis. The Company, on the contrary, contended that if rate- 
 able at all, the dead mains were only rateable as indirectly productive, 
 to be classed and dealt with as the station works. The court held that 
 the Company were right, and in conformity with their previous deci- 
 sion in the Mile End Old Town case, they ruled that after having 
 ascertained the rateable value of the whole property, that whole was 
 to be subdivided into two portions, one directly contributing to earn 
 the receipts, the value of which would depend upon the amount of 
 gas or water rental ; the other, indirectly contributing, that is, the 
 station works, including reservoirs, filter-beds, retort-houses, gas- 
 holders &c. And in this portion they classed the (dead) mains, 
 which, not being tapped, but conveying the gas or the water from the 
 place where the gas is made or the water obtained, to the place where 
 either the one or the other is consumed, only indirectly contributed, 
 they said, to earn the receipts. 
 
 In the year 1863, the Beg. v. Sheffield United Gas Company (a) 
 was decided. 
 
 (ffl) 32 L. J. Rep. (N. S.) M. C. 169; 4 B. & S. 135. 
 
120 
 
 Sheffield Gas This appeal was against a poor rate made on the 11th November, 
 Case, 1866. jg^g^ ^^^ jj^^ to^^gjjjp ^f Sheffield, and heard before the quarter ses- 
 sions on the 2nd of April, 1860, when a case was agreed upon by 
 consent of both parties. 
 
 Thestation works are in the township, and large mains pass through 
 the township to supply gas to parishes beyond. Gas is also largely 
 consumed in the township. 
 
 The parish arrived at the net rateable value of the whole property 
 by taking the gross receipts, deducting the working expenses, and 
 making the usual allowances as would be done for the valuation of a 
 railway. They then ascertained the structural value of the com- 
 pany's manufacturing works, and allowed upon it the usual con- 
 tractor's net rent or interest upon the outlay. They subtracted this 
 net rent from the net rent of the whole, and the remainder they ap- 
 portioned among the several parishes consuming gas in the propor- 
 tion of the value of the mains and pipes lying within them. 
 
 The appellants on their side contended that the manufacturing 
 works should have been valued like any other buildings of a similar 
 extent in the town of Sheffield, and the usual deductions made from 
 similar buildings in the town should be applied to them. Secondly, 
 that as to mains and pipes, these should have been divided into mains 
 and pipes laid in localities where they were necessarily laid, and those 
 where they might have laid them elsewhere if deemed expedient ; 
 and should have valued them only for the land, and at such a rental 
 as land, which in the latter they might have used instead of what 
 they did, was actually being let for, putting a higher value upon the 
 land they were forced to take, as being under the necessity of paying 
 at somewhat higher rental for that land because they could not do 
 without it. 
 
 The points referred to the court were thus stated — 
 
 " If the court of Queen's Bench should be of opinion that the me- 
 " thod above applied by the respondents, of fixing the net annual 
 " value of the appellants' rateable property in the respondent tonm- 
 " ship is not aceording to the Parochial Assessment Act, and is con- 
 " trary to law, then the court is prayed respectfully so to declare. 
 
 " If the court shall be of opinion that the appellants' method is 
 
121 
 
 " correct and ought to have been applied, then the court is respectfully/ 
 " prayed so to declare. 
 
 " If the court of Queen's Bench shall be of opinion that neither of 
 " the methods above stated is correct according to larv, then the court 
 " is prayed to declare what is the right method according to law, by 
 " rohich the net annual value of the appellants' rateable property in 
 " the respondent torenship should be ascertained." 
 
 Mr. Justice Blackburn delivered judgment. The court held " that 
 " the respondents were right in their mode of arriving at the rateable 
 " value of the whole, provided the proper allowance had been made 
 " for expenses and tenant's profits and interest upon capital. 
 
 " And they were also right if they had adopted the principle of 
 " valuing the station works and buildings as laid down in the Mile 
 " End Old Town case, and that of the West Middlesex, and not the 
 " appellants, who the court understood contended for a different 
 " principle. 
 
 " On the remaining point, the subdivision of the directly produc- 
 " tive value (arising from the gas rental not required for the indirect 
 " interests) in proportion to the values of the mains and pipes in the 
 " several parishes was not correct, not being in conformity with the 
 " principles explained in the judgment of the court in Reg. v. West 
 " Middlesex Waterworks Company." 
 
 In the year 1866, the next case, that of Reg. y. Inhabitants of Vhosnix. Gas 
 Lee (a) came on before the court of Queen's Bench at the January *-'*^^' 1866. 
 sittings before Lord Chief Justice Cockburn and Justices Blackburn 
 and Lush. 
 
 The appeal had been heard at the January sessions of 1865, before 
 Mr. Gathorue Hardy, M.P., at Maidstone. 
 
 The decision given in the Sheffield gas case, pointedly confirming 
 the decisions in the Mile End Old Town and the West Middlesex 
 
 {a) 35 L. J. Rep. {1f. S.) M. C. 105. 
 
122 
 
 cases seem to have settled the principles upon which the whole pro- 
 perty should be valued, and also how it should be apportioned. 
 
 Lord Chief Justice Bovill, then counsel for the company, remarked 
 in his opening' speech, that he felt " that after the decisions announced 
 " by the court of Queen's Bench, he could hardly succeed in inducing 
 " the court to adopt the principle of structural value as had been ori- 
 " ginally contended for on the part of companies, he could not ash 
 " the sessions to set aside the vien'S expressed by the judges of the 
 " land." 
 
 Admitting, or rather acting upon the pi-inciples laid down in the 
 cases, the company claimed higher allowances for the tenant. An 
 attempt had been made on several occasions in seeking to arrive at 
 the tenant's profits, to calculate the percentage allowed him, not upon 
 the money he would have to bring into the concern, but upon the 
 gross receipts ; but these attempts had failed. One arbitrator in the 
 case had reported that the company had sought to do so, but he had 
 not been able to find any connection between the capital of the tenant 
 and his receipts. Confined therefore to the tenant's capital, the com- 
 pany in this case sought to increase it, it was the only way in which 
 any large diminution of rateable value could be secured. 
 
 The company, with this object in view, after deducting the working 
 expenses from the gross receipts, which leaves the net profits of the 
 concern to be divided between the landlord and tenant, claim as the 
 necessary capital for the tenant to bring into the concern, the 
 following, viz. : — 
 
 Working Capital - . . . £53,000 
 
 Present value of Meters . . - . 35,000 
 
 Present value of Retorts - ... 18,000 
 
 Present value of fixtures and utensils ... 97,000 
 
 £200,000 
 
 making together £200,000, the tenant's capital, which the respondents 
 allowed, being £37,000. 
 
 The company contended, and gave evidence to that effect, and in 
 the 18th paragraph of the case it was " found as a fact by the court 
 " of Quarter Sessions, that according to the practice and course of 
 
123 
 
 " business in letting and hiring gas works, the tenant would have to 
 " take to and find capital for all the property comprised under the heads 
 " of meters, retorts, tenants' fixtures and utensils, and would have 
 " to provide £150,000 for that purpose, (and that a deduction in re- 
 " spect of such outlay was to be made in estimating, according 
 " to the provisions of the Parochial Assessment Act, what rent a 
 " tenant from year to year would be willing or might be reasonably 
 " expected to pay") {a). 
 
 The parish allowed only the first item in the tenant's capital, viz., 
 working capital, which they said should be £37,000, not £50,000. 
 The sessions allowed the £50,000, and the remainder, in all £:J00,000, 
 but granted a case for the court of Queen's Bench. 
 
 The questions for the opinion of the court of Queen's Bench were — 
 
 " 1. Whether it mas competent for the court of Quarter Sessions 
 " to allow a deduction iy way of tenant's profits in respect 
 " of any, and if any, of which of the matters and things comprised 
 " under the head of meters, retorts, tenant's trade fixtures and 
 " utensils, the nature of which is al/ove more particularly de- 
 " scribed ? If the court of Queen's Bench shall he of opinion that 
 " in any of the above-mentioned oases it mas not competent for the 
 " court of Quarter Sessions to allow a deduction, they shall not 
 " allow a deduction accordingly." 
 
 The court held in reference to the meters, retorts and tenant's trade 
 fixtures, upon which the company claimed a deduction by way of 
 tenant's profits that no deduction was to he allowed except in respect 
 of the meters. 
 
 It must be borne in mind, that this decision of the court of Queen's 
 Bench is based upon the facts found in the case, and that one of the 
 facts so found {b) is, that according to the practice and course of 
 business in letting and hiring gas works, the tenant would have to 
 take to and find capital for (c) all the property comprised under 
 the heads of meters, retorts, tenant's fixtures and utensils. 
 
 («) This is not a fact, it is a principle. 
 
 (S) See the 18th finding above quoted. 
 
 (c) With respect to this fact so found, the reader's attention is called to 
 the author's General Observations, beginning at page 35, and especially to the 
 first paragraph at page 36, Facts so found, §-c. S;c. 
 
124 
 
 CHAPTEE VIII. 
 
 Brick Fields; Cemeteries; Coal Mines; 
 Quarries, &c. 
 
 I have placed these properties in the same category because 
 they have a common peculiarity, virhich is not the case with 
 railway, gas, and water companies, viz : — that the very sub- 
 ject matter of the rate, the property itself is constantly being 
 used up, and some day will become exhausted. And a separate 
 chapter has been devoted to them, because, according to the 
 notion of their owners, this peculiarity removes them from the 
 class of public companies, and calls for another principle of va- 
 luation. The mode of dealing with this peculiarity has been 
 several times brought forward as a question for the Court of 
 Queen's Bench. 
 
 As to Brick Fields, — Be the case of the Queen v. Westbrook, 
 and of The Queen v. Everest (a). 
 
 As to Cemeteries : — in the Queen v. St. Mary Abbot's, Keu' 
 sington (b), and Queen v. St. Giles, Cambermell (c). 
 
 And as to Coal Mines : — in the case of The Queen v. Attwood 
 and others (d), and in that of The Queen v. Lord Granville (e). 
 
 In all these the Court held, as regards this peculiarity, that 
 the corpus, the subject matter of the rate, not being renewable 
 by any setting aside of a yearly sinking fund, so as to enable 
 
 (a) 10 Q. B. 178, and 16 L. J. Rep. (M. S.) M. C. 87. 
 
 (J) 12 A. & E. 824. 
 
 (c) U Q. B. 671, and 19 L. J. Rep. (IV. S.) M. C. 122. 
 
 (rf) 6 B. & C. 277. 
 
 (c) 9 B. & C. 189. 
 
125 
 
 the property always to command that rent, no sinking fund 
 should be allowed ; remarking-, that when tlie brick earth was 
 exhausted, there would be nothing to rate, and when the land of 
 the cemetery was full, the cemetery would no longer be rateable 
 as such. There were other points raised at different times for 
 the consideration of the court; these will be found mentioned 
 under the special subjects to which they refer. 
 
 SKCTION I. 
 
 Assessment of Bbick Fields. 
 
 Much uncertainty seems even now to prevail, as to how brick 
 fields are to be assessed. 
 
 This principally arises from the fact of the terms under which 
 brick land is held being different from those under which the 
 imaginary tenant is usually supposed to hold. 
 
 There se«ms to be a notion that brick fields should be classed 
 with farms, and not with companies, whose values are measured 
 by the profits of the immediate year preceding. There is an 
 attempt to apply the in communibus annis, which may be very 
 well with a farm whose produce will always command a market, 
 but certainly not so at all times with a brick field; bricks can- 
 not always command a sale : — that this is the case is evident 
 from the peculiar nature of the terms under which the leases 
 are held. In one case the surface land is paid for at so much 
 per year per acre, and the brick earth only when dug, and at so 
 much per thousand of bricks made, the lessee being bound to 
 make not less than so many thousands of bricks during his occu- 
 pation, or he may he bound to make not less than so many 
 thousands yearly, — but as many more as he pleases, paying a 
 royalty upon the whole made if above the average, — if not, upon 
 the average. In another case, the tenant pays 40 much per acre, 
 
126 
 
 of surface land, with the option, during the lease, of digging 
 brick earth at a fixed sum, if desired, and digging to any extent. 
 Sometimes, the tenant, paying a certain surface rent, may dig up 
 acre by acre, at so much per acre, irrespective of the number of 
 bricks he may make. The diflBculty is, how to apply these 
 various conditions to that under which the imaginary tenant is 
 supposed to hold in the Poor Law Act. These conditions would 
 be, if they could be arrived at, " in communibus annis," but does 
 the nature of the tenancy enable them to be so ? The value of a 
 railway is measured justly, in the opinion of the Court of Queen's 
 Bench, by the profits of the working of the previous year, and 
 if any material alteration takes place in the year after, whether 
 for better or for worse, that alteration is allowed for ; but the 
 profits of the previous year are admitted as an average. Why 
 should not this be the case with brick fields ? The fact, that 
 brick fields are not let at so much per acre per annum with the 
 option of digging, is a proof that the nature of the letting pre- 
 cludes it. What is the ohject sought, is it not to find out what 
 a brick field may be reasonably expected to let for from year to 
 year ? What it does let for, surely, is the best test of what it 
 may be expected to let for, and if it lets for a fixed yearly rent 
 for the surface land, and a varying rent for the brick land, — 
 whose average might partly be ascertained by taking the mean 
 of some years' working, where the lease was an old one — and 
 most closely approximated to, in any one year, in the case of a 
 new lease, by the number of bricks that were being made in the 
 year preceding. The decisions given by the Court of Queen's 
 Bench in reference to the peculiarity existing in this class of 
 properties, are so conclusive, that even the few following re- 
 marks may seem almost unnecessary. It is sought by some to 
 include the renewal of the corpus in the statutables, that is, in 
 the allowance between the gross and the net; they forget that 
 when a house falls down, it ceases to be rateable ; bow can the 
 brick earth be rated when it is exhausted ? The yearly sinking 
 
127 
 
 fund for rebuilding the house might rebuild it, and the parish 
 would then again get their rates, but no sinking fund could 
 replace the brick earth, and if not replaced, how could the parish 
 get their rates? Under these circumstances, whether the earth 
 under a given area is used up in one or twenty years, the 
 landlord can only realize the same aggregate rent, and the ag- 
 gregate rateable value to the paiish is the same, the parish sim- 
 ply getting the rates upon that value in one year or in twenty, 
 according to the terms of the occupation or the pleasui-e of the 
 tenant. 
 The cases of Westlrooh and, Everest are here annexed. 
 
 The Queen v. Westbyook and others, (a) 
 
 Rate ; Brick Field ; Rateable Value of; Rent ; Royalty. 
 
 " hi calculating the rateable value of a brick field, in any particu- 
 
 ^ ; J r Queen v.Vfest- 
 
 " lar year with reference to the statute Q Sf 1 Will. 4, c. 96, the brook 1847. 
 
 " royalty payable in respect of the number of bricks made, as well as 
 
 " the rent, may be taken into account, and neither the circumstances 
 
 " of the rapid exhaustion of the material, nor the casualties to which 
 
 " the article is subject in the process of manufacture, can a^ect the 
 
 " principle of the calculation. But if the sum for which it might be 
 
 " expected to let from year to year as a brickfield can be ascertained 
 
 " suck sum will be the true estimate of its annual value. 
 
 " E. W. rented a brick field of 10 acres at £2 per acre {without 
 " reference to the use made of the land,) and mas also liable to pay to 
 " his landlord a royalty or realty of Is. 6d. per thousand bricks 
 " moulded on such land. The session confirmed a rate at a rateable 
 " value of £159, which they calculated on the amount of rent and 
 " royalty, making all proper deductions, and they alsojound that the 
 " rent per acre which a tenant might be expected to give for the same 
 ^' field, with the liberty of taking the brick earth, and without any 
 " liability to pay any royalty in respect of the numier of bricks made 
 " would be £10 per acre, or £100. 
 
 (rt) Vide ante, p. 124. 
 
Everest. 
 
 128 
 
 " Held, that the latter sum, and not the former amount of £159, mas 
 " the true criterion of the rate. 
 
 Queen v. Everest, (a) 
 
 Queen v. " H. E. rented a hriehjield oj "26 acres, under an agreement to pay 
 
 " Us. 3d. per thousand bricks made. The sessions confirmed a rate, at 
 " a rateable value of £550, calculated at Is. per thousand bricks made. 
 " It was admitted that if the sum paid under the agreement n>as to 
 " be considered as a rent, £550 did not exceed the rateable value- 
 " No statement mas made as to the sum a tenant might be expected to 
 "give. The rateable iiLilue of ordinary agricultural land in the 
 " parish was £1 10«., and of a garden, £3 10«. 
 
 " Held, that none of these amounts gave the true rateable value ; but 
 " that the case must go back to the sessions to ascertain what a tenant 
 " would give mithin the meaning oJ' the statute 6 4" 7 Will, i, c. 96. 
 
 Queen o. E. Westbrook. 
 
 Queen ». West- " On an appeal by E. Westbrook and others, against a rate for the 
 " relief of the poor of the parish of Heston, in the county of Middle- 
 " sex, the Quarter Sessions for the said county of Middlesex con- 
 " firmed the rate, subject to the opinion of the Court of Queen's 
 " Bench on the following 
 
 Case. 
 
 " The appellants are brickmakers by trade, and for the purpose of 
 " carrying on that trade they occupy various plots of land in the parish 
 " of Heston, in the county of Middlesex, amounting altogether to 
 " 123a. 2r. 36p. or thereabouts. They were rated by the rate or assess- 
 " ment appealed against in respect of their occupation of such land, in 
 " several sums, amounting in the whole to £177 7s. Id., that rate 
 " being laid at the sum of Is. &d. in the pound on the amount of what 
 " the respondents contended was the right estimate of the annual 
 " value to let of the land in question. The only dispute between the 
 " parties at quarter sessions was as to the amount of the annual value 
 " in respect of which the rate ought to be laid on each of the appel- 
 " lants. 
 
 (o) Vide ante, page 124. 
 
 block. 
 
1?9 
 
 " The following- facta were agreed upon by the parties, and found 
 " by the sessions-. 
 
 " In all previous rates the appellant bad been rated on an estimated 
 " value of about one-eighth only of the sum which is inserted in the 
 " rate appealed against, and former rates having been laid with re- 
 " ference to the value of the land for any purposes of agriculture to 
 " which it might be applied ; but in laying the rate appealed against, 
 " the respondents calculated the number of bricks which, on the land 
 " in question, were capable of being made in the manner hereinbe- 
 " fore mentioned, and the result was the large increase above stated 
 " in the amount of the rates. In the business of brick making the 
 " following things are necessarily done : — the superficial soil being 
 " removed, the clay or brick earth is dug out, various foreign raw 
 " materials are purchased and brought to the brick field by the brick 
 " maker, for instance, chalk, breeze, sand, Hshes, and straw : some of 
 " these mateiials are always added to the clay or brick earth — sand 
 " and breeze are always so used, and in the parish of Heston are 
 " obtained by water and land carriage, the former from 'Woolwich, in 
 " the county of Kent, and the latter from London, a distance of about 14 
 " miles. The quantity of chalk, ashes, and breeze required to be used 
 " depends on the quality of the claj' — sometimes the clay requires to 
 " be washed, and for the purpose of washing it a steam engine is 
 " erected, and used in many cases, but does not happen to be so on the 
 " field in question. 
 
 " The clay has also to be ground or mixed in a mill, called a pug 
 " mill, each pug mill is worked by one horse, and one is necessary 
 " for each stool — a stool being a frame or table at which the bricks 
 " are moulded, and a gang, consisting of a moulder, a temperer, an 
 " off-bearer, a walk-flatter, two pug boys and a barrow boy. , Each 
 " stool is capable of making about 700,000 bricks in a year. 
 
 " The amount of capital required to enable the brick maker to work 
 " each such stool is about £900. 
 
 " The appellants severally hold under such leases, and E. West- 
 " brook holds the field above mentioned, for a term of seven or four- 
 
130 
 
 " teen years, or till the earth is dug out, and is liable to pay to his 
 " landlord £20 per annum as rent certain for the same, being a trifle 
 " under the sum of £2 per acre, without any reference to the kind of 
 " use which he may make of the land r and he is also liable, in addi- 
 " tion thereto, to pay his landlord a separate sum, called a royalty or 
 " realty of Is. 6d. for every thousand bricks moulded on such land 
 " in any one year. The rent, per acre, for the above mentioned 
 " 10a. 1r. 32/7. which on so takitiff a lease thereof, with liberty to con- 
 " sume the soil and clay or brick earth (and rvithout any liability to 
 " pay any royalty in respect of the number of bricks made) any tenant 
 " would have keen milling to pay, would have been the sum of £10 
 " per acre. 
 
 " If the court of Queen's Bench should be of opinion that the re- 
 " spondents' mode of rating was correct, the order of sessions was to 
 " be affirmed; otherwise that order to be quashed, and the rate to be 
 " amended, and any such other order to be made in the premises as 
 " to the court of Queen's Bench should' seem to be just. 
 
 The Queen v. Henry Everest (a). 
 
 Upon an appeal by Henry Everest against a rate for the relief of 
 the poor of the parish of Frindsbury, in the county of Kent, the ses- 
 sions confirmed the rate, subject to the opinion of the court on the 
 following 
 
 Case. 
 
 The appellant is the occupier of a piece of land in the parish of 
 Frindsbury, containing brick earth, on which he makes and burns 
 bricks. He entered on the occupation by virtue of the following 
 agreement, and has since continued to occupy upon the same terms, 
 without any formal renewal of the contract : — 
 
 " Memorandum of an agreement entered into the 3rd July, 1835, 
 " between John Batten, of, &c., of the one part and H. Everest, of, 
 
 (a) 10 Q. B. 178, and 16 L. J. Rep. (N. S.) M. C. 87. 
 
131 
 
 " &c., of the other part. First, that the said J. Batten agrees to let 
 " to the said H. E., a certain piece of land as a brick Held, (which is 
 " now, and has been for the last years, in the occupation of 
 
 " the said H. E.,) as marked out, &c., containing, &o., together with 
 " the cottages ttereon, to make and burn bricks for three years cer- 
 " tain, from Christmas, 1834, to .Christmas, 1837, on the following 
 " terms : — 
 
 " To make or pay for one million of bricks, at least for each year 
 " of the above period, at the rate of 2s. Sd. per thousand, and so on 
 " for every thousand beyond the said million, to be considered and 
 " estimated by and between 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 of March and the 29th of September in 
 '' each year, during the said term hereby granted, and in each year 
 " of the said H. E.'s occupation," &c., (with powers of disti-ess ;) and 
 then followed an agreement to pay at the rate of £3 per acre for land 
 not occupied for brick making, and for levelling the land broken 
 up, &c. 
 
 The appellant duly appealed against this rate, on the ground that 
 he was overrated in respect of the yearly value of the land in his 
 occupation. The clay or brick earth dug in the land in question is 
 never sold as such by the appellant, and is only one of the materials 
 used in the manufacture of bricks. The other materials used in the 
 manufacture of bricks are chalk, ashes, sand, and breeze — all of 
 which have to be brought to the brick field from other places. The 
 manufacture is attended with g-reat risk and uncertainty, and in the 
 process of making, the bricks are exposed to considerable damage 
 from rain and other accidental causes, for which, however, an allow- 
 ance of one-tenth from the gross number is made by the Excise in 
 charging the duty. When the rate appealed against was made, the 
 appellant had twenty-two stools for the purpose of brick making upon 
 his brick fields. The sum of £800 per annum is necessary for the proper 
 working of each stool. The sum paid by the appellant to Mr. 
 Hankey, under the memorandum of agreement, at Us. Sd. per 1000 
 
 K 2 
 
132 
 
 bricks made, amounted in tlie year 1840, to £1,010 9s. 6d., in the 
 year 1841, to £928 Is. id., in 1842, to £960 7^. 2i., in 1843, to 
 £953 13s. 3d., and in 1844, to £1,324 is. Qd. 
 
 The question for the opinion of the court was, what was the net 
 annual rateable value of the land in question ? 
 
 If the sums paid by the appellant under his agreement, were to be 
 considered in the nature of rent, and as such ought to form the basis 
 of the rating, the order of sessions was to be confirmed. If either of 
 the modes contended for by the appellant should be considered cor- 
 rect, the case was to be sent back to the sessions, that the rate might 
 be adjusted accordingly. 
 
 Lord Denman, C. J. — " These were cases sent from the sessions 
 " respectively of Middlesex and Kent, which nia}' propei'ly be con- 
 " sidered together, being intended to procure a decision on the same 
 " question, the propermode of rating the occupiers of brick fields to the 
 " relief of the poor. The material facts found in both cases are nearly 
 " the same. In both it is staled that much expense, and the introduc- 
 " tionofforeignmatters, are necessary in order to make the occupation 
 '' productive and profitable, and the result is liable to much risk. It is 
 " understood, therefore, if not made legally certain, that the tenancy 
 " shall be of some years' duration, and the rent is in part only fixed, in 
 "part made to depend, in the nature of a royalty, on the number of 
 " bricks made. The material, the brick earth, is not in its nature 
 " renewable, and in both cases will be consumed, according to reasonable 
 " calculation, within no great number of years. In both cases, the 
 " basisof theratehasbeen the supposed total amount paid to the land- 
 '' lord, considering as well the roj^alty as the fixed sum to be rent, and 
 "to be the proper criterion within the Parochial Assessment Act, of the 
 " rent at which the land may reasonably be expected to let, from year 
 " to year, free of such chai'ges, and making such deductions as the 
 " statute specifies. 
 
 " In the case of Westbrook, however, the sessions found ' the 
 " ' rent per annuw, rvhtch, on tukinci a lease, with liberty to consume 
 " ' the soil and clay, or brick earth, and rvithout any liability to pay 
 " a7iy royalty in respect of the number of bricks made, any tenant 
 '^ mould have been milling to pay, mould have been the sum of £10 
 " 'per annum only.'"' 
 
133 
 
 ''' No finding, correspondent to this, appears in the case of Everest. 
 " The question which we have to determine is, whether the principle 
 " on which the parish officers have proceeded is correct, with reference 
 " to the statute before alluded te ? 
 
 " We must assume the amounts to be correct, both as to the royalty 
 " and the deductions made; and no question involving' any difficulty 
 " in principle was raised as to the nature or number of these last. It 
 " will be convenient, in the first place, to consider the question, wiih- 
 " out reference to the special Jinding in Wesibrooh's case, and then 
 " to see whether thatjindivg makes anij difference in the decision of 
 " that case. 
 
 " It is objected by the appellanta, in the first place, that it is a fiil- 
 " lacy to infer from the fact tha;t there are so many stools on the ground, 
 " from which so many thousand bricks may be made in each year, 
 " that so many will in fact be made and paid for ; or, secondly, from 
 " the fact, that ao many may have been made and paid for in one year, 
 " that the same, or an equal number will be made and paid for in the 
 " following year and years 4 and, without doubt, the conclusions do 
 " not follow with certainty from the premises. But the answer to the 
 " first of these questions is, that it is rather a question of amount than 
 " of principle; it does not touch the question, of whether the royalty is 
 " in substance a rent? Considered as a question of amount only, the 
 " parish officers having to make a prospective rate, nay well look 
 " to see what it is proiahle the land will be made to produce in the 
 " current year : they may well proceed with a brick field as they 
 " would with land used for agriculture. 
 
 " They cannot in that case, tell for certainty how much will be tilled, 
 " nor with what grain, still less how much will be produced, or at what 
 " price sold. Yet, supposing the tenant to occupy at a rent, to be ascer- 
 " tained in each year by the actual produce and price, as it well might 
 " be, they mayreasonably beforehand, from such premises as the nature 
 " of the land, its usual mode of cultivation, the preparations actually 
 " made, if any, and other such circumstances, infer what will be the 
 " rateable value in the given year. In the present case, we cannot 
 " say that the nature of the occupation does not afford rather safer 
 " premises for drawing the conclusion as to amount. 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 
 
134 
 
 " making bricks, and that more would not be erected than the quantity 
 " of bricks to be made would require, and that more bi-itks would not 
 " be made than were expected to be sold, especially as the duty to 
 " Government, and the royalty to the landlord, are to be paid, not on 
 " the sale, but on the making. These premises raised at least a prima 
 "facie case : and if they led to an exaggerated conclusion, it was in 
 " thepower of the appellants to have shomn theerror by actual proof. 
 ' As to the second objection, the answer is, that the rate is made but 
 " for the year, and any falling off in succeeding years would, of course, 
 " operate in reduction of the rate for those years. 
 
 " But the next objection is a more important one : that it is alto- 
 " g-ether wrong- in principle to consider the 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, and to be 
 " exhausted at the end of a long period, as is the case with a coal 
 " mine, under which circumstances it was admitted that it might be 
 " treated as produce, but in such large proportions that the whole in a 
 "fen years would be exhausted. It does not appear to us that the 
 " circumstance of a more or less rapid consumption can make any 
 " difference in the principle. The rate is always imposed with refe- 
 " rence to the existing value, whether temporary or enduring is 
 " immaterial. A case was supposed of a brick field worked out in less 
 '' than a year, to meet the demand of some enormous contract for a 
 " public work, the consequence would be, that the land would have a 
 " very much increased rate for that year ; in the following year its 
 " value might sink almost to nothing, and the rate ought to fallpro- 
 ■' portionately, even to nothing, if the brick earth being exhausted, 
 " the land, like an exhausted coal m,ine, should become entirely un- 
 " productive. If this were not so an obvious injustice would be done 
 " to the ratepayers. Suppose two brickfields of the same size, which, 
 " if worked, so as to be consumed in ten years, and by equal working 
 " in each year would produce £1000 each, on which the rate should 
 " be ten pounds in ten years, each will contribute one hundred pounds 
 " to the parochial authorities ; let one be exhausted in the first year, 
 " the produce will have been £10,000, but the rate only ten pounds 
 " for that year, according to the appellant's argument, and it may ba 
 " nothing afterwards, but, whatever it be afterwards, it is clear that 
 
135 
 
 <' tliere will have been a valuable occupation in one year, escaping as 
 " to nine-tenths the rate entirely. But no injustice would be done if 
 " in every year the occupier could be assessed according to the actual 
 " value in that year, and it is the duty of the overseers to arrive as 
 " nearly at this as they can. The case of King v. Mirfield was men- 
 " tioned in the course of the argument, the facts of that case are wholly 
 " unlike the present, the saleable underwoods there produced no 
 " profit, except in the twenty-flrst year, here there is nothing to show 
 *' that equal profits may n«t arise in every year of that tenancy ; long 
 ■" or short, the term of tenancy is fixed on that assumption ; the 
 ^' principle of that decision, however, is in accordance with what 
 " will be our conclusion. 
 
 " We come then to the bai-e 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, however, 
 "■ must of course have been cast off before the royalty itself was fixed. 
 " That was a sum, which, after all such expenses were paid, the occu. 
 '' pier could afford to render to the landlord. When the ca.se is thus 
 " laid bare, there is no distinction between it and that of the lessee -of 
 " coal mines, of clay 'pits, of slate quarries ; in all these the occnpa- 
 " tion is only valaablebyremovalof portions of the soil, and whether 
 " the occupation is paid for in money or in kind, is fixed beforehand, 
 *' by contract, or measured afterwards by the actual produce ; it is 
 " equally in substance a rent ; it is the compensation which the occu- 
 <' pier pays the landlord for that species of occupation which the con- 
 " tract between them allows. This would not admit of an argument 
 ■" in an agricultural lease, where the tenant was to pay a certain 
 " portion of the produce, that would be admitted to be in all respects 
 " a rent service, with every incident to such a rent, and in Daniel y. 
 " Grade we held the same with regard to a marl pit and brick mine, 
 " as the parties termed it, where the render was of so much per cubic 
 " yard of the marl dug, 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 mode by which thej 3.Tnve prima facie at the 
 " conclusion, that the amount of royalty reckoned in the rate will be 
 " paid in the year for which the rate was made. 
 
13G 
 
 Weslbrook " Still, it must always be remembered, that the ultimate question is 
 
 ag'eed to give "'hat propounded by the statute, and therefore the amount which has 
 
 too much ; " been paid, or what is reasonahle to infer will be paid, is only evidence, 
 
 " not the fact itself to be ascertained. When, therefore, the case came 
 
 "to the ses3ions,it was open to the appellants to prove such uncertainty 
 
 " in the market, or such circumstances atfecting the process of making', 
 
 to move That* " "^ showed that the parish officers had done wrong in concluding 
 
 he promised to " from such a quantity made or expected to bs made, that the land 
 
 J) y miic . (, jjjjg.jj(. reasonably be expected to let, 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 althovgh 
 
 " at the end of the year the lessee has made so many briohs, that he cart 
 
 " afford to pay one hundred and^fifty poinds in royalty to his landlord, 
 
 " he could not prudently at the beginnini; of the year contract to pay 
 
 " more than one hundred pounds, and ij so, the latter, rather than the 
 
 "former, mill be the sum at which the land may reasonably be expected 
 
 " to let from year to year. And this is what we understand the 
 
 " sessions mean in Westbroolt's case, by the special finding. The 
 
 " parish officers estimate the rent at a supposed amount of bricks 
 
 " actually made, and the royalty then payable on such amount ; from 
 
 " this they make such deductions as reduce the rateable value to one 
 
 "hundred and fifty nine pounds ten shilhngs, but the sessions sajf,' 
 
 " 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 for it, he could not be expected to give more than 
 
 "ten piunds per acre, which, on the whole, would amount to a little 
 
 " more than one hundred pounds. This latter appears to us to be the 
 
 " true criterion rather than the former, and the rate must be amended 
 
 " accordingly. 
 
 " It is not so easy to deal with Everest's case. The sesMons ask us, 
 " what is the net annual rateable value of the land ? and add, if the 
 "sums paid are to be considered in the nature of rent, and as such 
 " ought to form the basis of rating, their order is to be confirmed ; if 
 " either of the modes contended for by the appellant be correct, the 
 "case is to be sent hack, that the rate may be adjusted accordingly. 
 " Now, neither of the appellant's modes are correct, nor mere contended 
 " so to be ; they were in effect to rate land occupied in one mode, as if 
 
13? 
 
 " it were occupied in another, the modes producing different rates of 
 
 " profit, and commanding different amounts of rent, than which 
 
 " nothing can be more unreasonable. But,ontheother hand, although That is as to 
 
 " the sums paid are in the nature of rent, it does not follow that they *™°""''' 
 
 X unless so 
 
 " must form the basis of the rate in the sense of fixing its amount, found as 
 
 " The true question is that which the sessions ask, but which they must <""''?'=' ^y ""« 
 ' ' •' sessions. 
 
 " answer for themselves, by finding', upon eyidence according- to the 
 
 " principles laid down, what, in the words of the statute, is ' the rent 
 
 " ' at which the land may reasonably he 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 his occupation, and after makingall the deductions specified 
 
 " in the statute. It by no means follows that this mode of examina- 
 
 " tion will produce so great a change in Everest's case, as it has in 
 
 " Wesibrook's. The circumstances may be such as to risk, or market, Simply as to 
 
 " or competition, as to make the difference little more than nominal """*"" ."" "^ 
 ^ ' to principle. 
 
 " The market may be so sure, the competition so great, as to make the 
 " risk almost nothing. Still this is the question to be tried, and for 
 '' the purpose of trying it, this case must go back to the sessions. Both 
 " orders should go back to the respective sessions, that the rates may be 
 " amended according to the principles laid down." 
 The orders were sent back to the sessions accordingly. 
 
 The judgment of Lord Denman has been given in full, as 
 the views expressed therein are clearly applicable to each of 
 this class of cases, and because the connection of the reasoning' 
 would have been destroj'ed by the omission of a single sentence. 
 And so also have the head notes, as giving a most correct sum- 
 mary of the judgment, and, as being likely, if mutilated, to mis- 
 lead. Clear, however, as this judgment is, and fairly and 
 honestly as these Lead notes give the summary, (they do not 
 always do so,) this judgment and summary still continue 
 to be misunderstood. A few observations may not therefore be 
 out of place. 
 
 The two cases of Westbrook and Everest agree as to the 
 general terms of their tenancy ; that is, they each pay a surface 
 
138 
 
 rent and a royalty. As to the royalty, Lord Denman says, 
 " we are brought to the conclusion that the parish officers have 
 " done right in considering the royalty as a portion of the rent." 
 And they agree in one respect as to the findings of the sessions, 
 viz., that the one shilling and sixpence per thousand was 
 actually paid in Westbrooh case, and two shillings and three- 
 pence per thousand in that of Everest, and in the omission of 
 any finding of the sessions, that these amounts were fair and 
 reasonable. 
 
 But they differ most seriously in this, that in the case of 
 Westbrook, the sessions found, " that the rent per acre which a 
 " tenant might be expected to give for the same field, with the 
 " liberty of taking the brick earth, and without any liability to 
 " pay any royalty in respect of the number of the bricks made, 
 ■" would be £10 per acre," while in that of Everest, that or a 
 similar finding was entirely omitted. 
 
 This finding, of course, at once disposed of the case of West- 
 brook. It was a question of fact. The sessions did not state 
 why they found it, and consequently the Queen's Bench could 
 not find fault with reasons that were never given, nor could the 
 respondents find fault with the finding, because they had allowed 
 it to stand part of the case. 
 
 The omission of it in the case of Everest gave the court an 
 opportunity of laying down the correct principles of valuation, 
 unfettered by any findings of the sessions. And Lord Denman 
 virtually says, as regards the Everest case, " H. E. rents a 
 " brick field, and agrees to pay 2s. ^d. per 1000 bricks made, 
 " and has, under an agreement, paid certain sums during cer- 
 " tain years by way of royalty, and we are of opinion that the 
 " question of royalty ought to be taken into account ; but as 
 " there is nothing in the findings of the case to say 
 " that the royalty paid is a fair and proper amount, or that 
 " the tenant, though he may have paid the sums he has paid at 
 " the end of the year upon a certain number of bricks made, 
 *' could have prudently at the beginning have contracted to 
 
139 
 
 " pay more than a mucb lower sura. In other words, as the 
 " rent agreed to be paid is not necessarily the probable rent at 
 " which the property might be reasonably expected to let, and 
 " as the sessions have in the case simply sent us the former, 
 " and g'iven us no figures by which we can arrive at the latter, 
 " whereas, in the Westbrook case, the sessions there have as- 
 " certained that rent, and made it part of the case; all we can do 
 " is to say, that in Everest's case none of the amounts give the 
 " true rateable value, (as they are amounts which, though ac- 
 " tually paid at the end of the year, may not be prudently con- 
 " tracted for at the beginning,) and that, therefore, the case 
 " must be sent back to ascertain the fair and reasonable rent 
 " which the tenant might be expected to give within the mean- 
 " ing of the statute 6&7 Will. c. 96." 
 
 It is clear from his own words, that Lord Denman depended 
 a great deal upon the finding of the sessions, viz., '' that if the 
 " principle of taking the amount of bricks made, and the roy- 
 " alty payable upon them mere adopted, the rent would he £159, 
 " while the rent a tenant migM he expected to give would he 
 " only £100," and therefrom concluded that though in Everest's 
 case, " it by no means follows that this mode of examination 
 " will produce so great a change as it did in Westbrook' s. The 
 " circumstances may be such, as to risk of market or competition, 
 " as to make the difference (between what he has paid and what 
 " he might prudently have contracted to pay) little more than 
 " nominal. Still, this is the question to be tried, and for the 
 " purpose of trying it the case must go back to the sessions." 
 
 In reference to this case, and the conflicting findings of the 
 two quarter sessions, the reader's attention must again be called 
 to the General Observations at page 35, and more particularly 
 to the first paragraph, at page 36. 
 
 The findings of quarter sessions depend upon the evidence put 
 
140 
 
 before them. They are bound to find upon the evidence. The 
 evidence may be misunderstood, may be incorrect, may be 
 false — the sessions are bound to accept it, if not contradicted. 
 And the Queen's Bench must accept the findings, and deal with 
 them as facts- 
 
 In the Phoenix Gas Case (a) the counsel inquires of the gas 
 engineer, who is witness for the company : 
 
 Q. What would any tenant taking gas works, have to pay 
 independently of his rent ? For instance, would he have to pay 
 for retorts, meters, &c. ? 
 
 A. Yes, he would, according to a well recognized practice in 
 mailing estimates of tMs Mnd. 
 
 Upon this question and answer the Maidstone sessions found, 
 and made a part of the case, viz., that it was proved on the part 
 of the appellants, and found as a fact by the sessions upon the eci- 
 dence before them, which they had entirely misunderstood, that 
 according to the practice and course of business in letting or 
 hiring gasworks (the evidence was according to the well recog- 
 nized practice in making estimates for rating purposes,) the 
 tenant would have to take to and find capital for all the pro- 
 perty comprised under the bead of meters, retorts, &c. 
 
 SEcfTION 11. 
 
 Cemeteries. 
 
 These come under the same class of property as brick fields. A 
 property, where the destruction of the corpus is constantly going on ; 
 where the income derived, and for which the rent is paid, consists, 
 not only of constantly recurring fees and yearly charges, but of mo- 
 nies paid once for all for using up the corpus, the very subject matter 
 of the rate itself The yearly dividends payable to the shareholders 
 being really in the nature of terminable annuities. Under these cir- 
 
 (o) FtrfelSth finding, page 132. 
 
141 
 
 cumstances, the companies naturally contended that the yearly- 
 revenue should be divided, and that only so much of (what was vir- 
 tually the purchase-money of the fee simple of the land of the ceme- 
 tery, — to be exhausted at some time, — should be brought into assess- 
 ment, as would leave a sufficient sinking fund to replace the capital 
 of the company, where all the ground of the cemetery was taken up. 
 This view of the companies was embodied in the case of The Queen v. gt. Mary 
 The Inhabitants of St. Mary Abbot's, Kensington (a), which was Abbot's, Ken- 
 heard before the court of Queen's Bench in the year 1846. 
 
 The company (the General Cemetery Company), incorporated by 
 statute (2 & 3 Will. 4, c. 110), had purchased land, and erected the 
 buildings for which they are rated. They prepared the greater por- 
 tion of the ground forthe purposes of a cemetery, in which interments 
 take place as in common burial grounds. They also made catacombs 
 and vaults, which are wholly unproductive until disposed of under the 
 Act ; but many are annually disposed of in perpetuity, according to 
 the form of conveyance given by the statute, and for the uses therein 
 set forth. Certain portions of the ground have also been annually 
 disposed of, by the statutable conveyance, for family graves. The 
 purchasers of the vaults have had the keys delivered to them after 
 closing them up as directed by sect. 43, and have done all requisite 
 repairs, the company never exercising any act of ownership in respect 
 of them after such sales; but at each subsequent interment in the 
 family vaults thus sold, they chai'ge various fees for the services of 
 the minister, clerk, sexton, &c. 
 
 The rate in question was founded upon the principle that the com- 
 pany were liable to be rated for the produce of the ground so sold or 
 disposed of for family graves, and for the catacombs and vaults so 
 sold or disposed of during each year for the purpose of burial, after 
 deducting therefrom all the expense of building the catacombs and 
 vaults, and all other expenses attendant on preparing them for use ; 
 and also to be rated upon all the fees paid for the services of the cler- 
 gyman, clerk, sexton, &c, (deducting therefrom the stipends paid by 
 the company to them, and all other necessary expenses upon such in- 
 terments), and likewise upon all fees due on common interments. 
 
 (a) 12 A. & E, 824. 
 
142 
 
 where no rights in perpetuity or for a term had been granted ; and 
 upon the herbage growing in the cemetery. The appellants contended 
 that the company were not rateable in respect of the produce of 
 the family graves, catacombs, &c., so sold or disposed of during 
 each year, but only upon the fees paid upon all burials therein, 
 and upon common interments (deducting the aforesaid stipends and 
 necessary expenses), in addition to the herbage as before mentioned. 
 If the court should be of opinion that the company were rateable for 
 the sums received by them in respect of the sales for family graves, 
 catacombs, and vaults, then the original rate was to be confirmed. 
 But if the court should be of opinion that the company were only 
 rateable in respect of the fees and herbage, then the rate was to stand, 
 as reduced by the quarter sessions, at £444 18s. 
 
 Lord Denman, C. J. — " The company are occupiers of the whole 
 <' premises. The cemetery is under their control and superinten- 
 " dence; and by section 44, they are bound to keep the whole in repair. 
 " They must be assessed upon the whole of their profits." 
 
 Littledale, J. — " The Act gives the company power to construct 
 " vaults and catacombs, which they may hereafter convey in perpe- 
 " tuity or otherwise. This power of disposing of the right of burial 
 " in perpetuity makes no diiference in principle ; they are still the 
 " occupiers of the whole cemetery. It does not appear that the 
 " owners of the vaults have the keys of the outer inclosure, though 
 " the Company deliver them the keys of the vaults. The purchasers 
 " have nothing but a right to a certain mode of enjoying portions of 
 " the land from which the company derive a profit." 
 
 Williams, J. — " No doubt the company are in the occupation of the 
 " whole cemetery. They have the regulation and the repair of it, 
 " and the general superintendence over it. They have the control of 
 " the external entrance. We lately had occasion to consider the prin- 
 " ciples on which persons are rateable as occupiers of land, in Rex v. 
 " The Mayor, Sfc.,ofYorli ; hut this is a much stronger case of occu- 
 " pation. It is a fallacy to treat the conveyance here as a sale of the 
 " land. The company have no power to sell any but the surplus 
 " land not used for the cemetery. By the grant they only part with 
 " the exclusive right of sepulture." 
 
143 
 
 Coleridg'e, J. — " If the company are in occupation of the whole 
 '' cemetery, there is no difficulty, for it is unnecessary that there 
 " should be annual proiits. Some facts stated in the case look like 
 " an occupation by the purchasers ; but they are explained by refer- 
 " ence to the statute. Sect. 4 gives the company a limited power of 
 " sale ; and sect. 7 must be constrbed in conformity with that pro- 
 " vision. The land appropriated for interment cannot be sold. The 
 " sales, therefore, made under sect. 43, convey only a peculiar ease- 
 " ment, and do not deprive the company of the general occupation of 
 " the whole. 
 
 Order oJF sessions quashed. 
 
 There was another case, which washeard in the year 1848, The'Queen 
 V. The Inhabitants of St. Giles, Camberrvell, (a) where other points 
 were raised, — not by the company, who appear to have acquiesced in 
 the ruling in the case of St. Mary Abbot, — but by the parish, who, 
 dissatisfied with the result that an estimate on the profits of rating 
 would give, as laid down in that case, sought to ignore the decision, 
 and establish in lieu thereof an entirely new principle. They con. 
 tended that the valuation ought to be made on a percentage of the 
 outlay expended upon the land, and improvements, allowing the usual 
 deductions. There was also another point which the parish contended 
 for, viz., that the cemetery in Camberwell ought not to be charged 
 with the expenses of management incurred at the London office. 
 
 By the stat 6 & 7 Will. 4, c. 136, incorporating the London Ceme- 
 tery Company, the company were required periodically to appoint 
 directors, who should manage the business and concerns of the com- 
 pany (subject to their control), keep and use the common seal, have 
 the custody of books, deeds, &c. ; call meetings ; purchase and sell 
 lands ; appoint and displace chaplains, &c., &c. ; also auditors, who 
 should examine the report to be made by the directors, &c. The com- 
 pany had two cemeteries, in Middlesex and Surrey. The duties and 
 authority of the directors extended to both. 
 
 On the hearing of the appeal, the appellants contended that the 
 proper mode of ascertaining the rateable value of the cemetery was 
 by estimating what a tenant eould afford to pay as rent for it, who 
 
 (a) 19 L. J. Rep. (N. S.) M. C. 122 ; 14 Q. B. 571. 
 
144 
 
 was obliged to carry on the concern in the same way as the company 
 are by their Acts of Parliament compelled to do ; and that in order 
 to arrive at such rent, there should be deducted from the gross revenue 
 of the Nunhead Cemetery, viz., £'2,536, — first the local expenses, 
 £1,628, which would leave £908. Secondly, 10 per cent, on £2,536 
 for tenants' profits. And lastly, one half of the sum of £912 14s., 
 being the expenses of management, directors, auditors, &c., incurred 
 at the common London office. 
 
 The respondents contended that the profits derived to the company 
 were not the sole or proper test of the rateable value. That the usual 
 and the fair mode of arriving at the rent was by a percentage on the 
 outlay upon the land and improvements. But if the court should 
 decide in favour of the company's view, then they contended that 
 the company were not entitled to deduct the general expenses of 
 management. 
 
 The sessions held, that the revenues derived by the company from 
 the cemetery was the proper criterion of its rateable value, and 
 generally supported the views of the company, reducing the rate from 
 £480, on which the company were assessed, to £377, subject to the 
 opinion of the court of Queen's Bench. 
 
 Patteson, J., in the ensuing vacation, in delivering judgment, said, 
 " Much discussion has taken place ; but ultimately the question has 
 " turned upon the propriety, or otherwise, of deducting for the general 
 " expenses, including payments to the directors and auditors. We 
 " are of opinion they ought not to be allowed, and therefore there will 
 " be judgment for the appellants, — that the assessment be restored to 
 " £480 ; the amount of the deduction, which we think ought not to 
 " be allowed, making more than the difference between £480 and 
 " £377, the amount to which it was reduced by the order of ses- 
 " sions." 
 
 Hate to be increased accordingly. 
 
 Note. — This decision regarding the directors' fees is altogether at variance 
 with that given in the Southampton Dock case {a), where it was held that 
 the fees payable to directors and auditors were an allowable deduction. 
 
 (a) 14 Q. B. 587. 
 
145 
 
 Upon the important question, whether the court would confirm the 
 ruling in the St. Mary Abbots, Kensington case, or establish a new 
 principle, the court had so decidedly expressed their opinion in the 
 course of the argument, that the respondent's counsel, addressed 
 themselves at last more especially to the question of costs of manage- 
 ment, and to this question solely Mr. Justice Patteson referred in his 
 judgment. 
 
 SECTION III. 
 
 Coal Mines. 
 
 These come within the same category as brick fields, cemeteries, 
 and are to be treated in the same way. Much has been said about 
 the rating of coal mines,— much has been written about them ; but 
 the mode of dealing with them must be the same as with all proper- 
 ties similarly circumstanced, where the value to the tenant taking 
 would depend upon " the profit he could make out of the concern." 
 
 It is the same thing over again. The yearly receipts, less the ex- 
 penses, become the profits divisible between the landlord and tenant ; 
 what sum out of these profits would he be willing to give the landlord 
 as rent, and what sum would the landlord be willing to accept ? 
 The amount — at first probably at] issue between them — would soon 
 be settled by the ratio of demand and supply, — neither would 
 be allowed to have it entirely his own way. 
 
 No other principle but this could ever be recognized by the court 
 of Queen's Bench. 
 
 Before giving ah example of the principle of assessment, a few 
 observations may be useful. 
 
 Eoyalty is not rent. That is rent of a coal mine in working con- 
 dition, that is, in that condition in which it could be rateable ; it is 
 merely the yearly payment for the privilege of opening up and 
 removing, approaching to or receding from the real rent, that is the 
 net rateable (for in all cases of coal-mine leases the tenant maintains,) 
 according to the smaller or greater difficulty, or less and greater 
 expense that the lessee is likely to be put to in getting at and extract- 
 
 L 
 
146 
 
 ing the coal ; and according also to the situation of the colliery, whe- 
 ther favourable or otherwise, for shipment or inland consumption. 
 
 If the coal seams are very low, and the shaft to be sunk is deep ; 
 if the mine has to be drained, and heavy engine power has to be used 
 for pumping and raising ; and if the colliery be distant from home 
 consumption, and from a port for transhipment, then the royalty 
 becomes a minimum. 
 
 It might be a question, under these circumstances, whether a roy- 
 alty could be paid at all, — whether it would be worth while to work 
 the mine, whether the profit from the coal would pay the royalty 
 and make a fair return for the money invested in opening up the 
 mine and putting up the machinery ; but if it were brought into 
 working order, though the profits might not be sufficient to pay the 
 royalty and give a fair interest upon the outlay, yet the mine would 
 still be rateable, and the rateable value would be not the royalty only' 
 but the royalty increased by such interest upon the outlay as the 
 profits of the mine could afford to pay (after the tenant has been 
 allowed his own profits). 
 
 It must not be forgotten that the first lessee of a coal mine, who 
 takes the land direct from the landowner, and pays a royalty, is 
 not the tenant contemplated under the Poor Law Act. He sim- 
 ply stands in the position of a building lessee. When he has opened 
 up the mine, and dug and put up machinery, and brought it into 
 working order, and then either uses it himself, or leases it to 
 anothei', — then only does he or that other become in the position 
 of the imaginary tenant, paying rent, not for the land, but for all 
 that has been put upon it. 
 
 Again, collieries are exhaustable, like brick fields ; like cemeteries, 
 they cannot be renewed ; they can only be rateable for the whole 
 quantity of coal that can, either in a short or long time, be raised. 
 The landowner can only get royalty for that coal ; when that coal 
 is exhausted, that royalty ceases, and the property ceases to be 
 rateable. The effect of the property being exhaustable, would be 
 to increase the royalty (if the nature of the working admitted of 
 doing so), but certainly not to diminish it. There can be no claim, 
 therefore, for a sinking fund to continue the royalty when the mine 
 is' worked out. 
 
 Neither can there be a deduction allowed for " winning the qol- 
 
147 
 
 liery," that is, for providing for the redemption or reproduction of 
 the money sunk by the building lessee, or first lessee, under the 
 landowner. As between the landowner and his first lessee, it might 
 become a question whether, if the lessee wished the landowner to 
 " win " the colliery for him, and over and above the royalty, charge 
 him, (the lessee,) with a further rent for doing so ; the landowner 
 would not in the rent he would ask include an amount sufficient 
 besides the usual statutables, to allow for replacing the money 
 advanced, so that he might claim 7 per cent, or 8 per cent, upon this 
 outlay, instead of 5 per cent, or 6 per cent. 
 
 What the landlord would expect would be royalty upon the coals 
 raised to the surface, interest upon his outlay, calculated upon the 
 probable time the machinery could be kept in effective use, and pro- 
 viding for the replacement of the capital sunk at the end of that 
 time, and a yearly allowance to maintain and uphold the corpus. 
 This would be the gross rent, and the perishable nature of the pro- 
 perty would go to increase that rent, not to diminish it; that is, if the 
 rent of the colliery were to be ascertained by means of adding to the 
 royalty a fair interest upon the outlay incurred in winning the colliery; 
 then the benefit of that, outlay not being permanent, a higher, not a 
 lower, rate of interest would have to be allowed by way of rent. 
 It must be understood here that the engines, buildings, and 
 plant are part of the corpus, and are to be provided for in the 
 statutables, but that no provision is to be made to renew or replace 
 that part of the corpus which cannot be carried away and taken 
 elsewhere. This comes under the same category as the land, anS 
 would cease with the royalty, — " no longer vseable, — no longer 
 rateable." 
 
 The royalty, and the rent upon the building, lessee's outlay, are 
 not, taken together, the actual rent that the tenant could from the 
 business afford to give, but only what the intending tenant thinks he 
 can give. The two are simply estimated rent fixed by agreement 
 between the landlord and tenant, — not determined by fact. The 
 annual woi'king of the colliery could alone show what the business 
 would allow. 
 
 L 2 
 
148 
 
 The following are the decided cases : 
 
 The King v. John Attwood, Esq. and others (a) ; and 
 
 The King v. Lord Granville (b). 
 
 The King v. John Attwood, Esq. and others.- 
 
 The owner and On the 29th day of March, 1825, the churchwardens and over- 
 occupier of seers of the parish of Kowley Regis, in the county of Stafford, made 
 coal mines is ,• ■, .i a > j t 
 
 rateable to the * ''^*6 ™^ ^^ relief of the poor, in which the above John Attwood 
 
 poor at the ^^g assessed as owner and occupier, and Thomas Devey Wia-ht- 
 sum for which '^ ./ o 
 
 the mine wich, John Jones, and Joseph Feredey, and Josiah Parkes, were 
 
 would let, assessed as lessees and occupiers of certain coal mines then at work, 
 subject to out- . ,. , 
 
 goings. The L'pon an appeal to the Midsummer general quarter sessions for the 
 
 lessee of coal county of Stafford, the rate was confirmed, subject to the opinion of 
 able for the *^'^ court, upon the following case : — The appellant, John Attwood, 
 amount of ^as the proprietor and occupier of the coal mine, upon which the 
 which he pays above rate upon him was made (which mine is situate in the parish 
 and in neither of Rowley Regis, in the county of Stafford), and had expended up- 
 allowance to ^S'l'ds of £10,000 in planting the mine and setting it to work (c). The 
 be made for mine had been at work one year and a quarter. The value of the 
 neiSi^in" whole of the coals which had then been raised from the mine did 
 rendering the not exceed £5,000. The full value of the ailnual produce of the 
 mines produc- ^j^g j^ question, after deducting the current expenses of working 
 the same, amounted to the sum of £428 9«. Upon that amount 
 the appellant was rated. 
 
 The appellant, J. D. Wightwich, had been for five months prior 
 to the said 29th day of March, 1825, lessee of the coal mine upon 
 which the rate upon him was made, and which is situate in the 
 said parish of Rowley Regis ; and during the five months that he 
 had been lessee he had paid £785 lis. in royalties for coals raised; 
 he had also expended, in the purchase of the lease, and setting the 
 mines to work, £5,020. During the five months that he had occu- 
 pied the mine he had raised coals to the amount of £3,825 2s. 8rf. 
 
 [a) 6 B. & C. 277. 
 
 (b) 9 B. it C. 188. 
 
145 
 
 The appellant, J. D. Wightwich, was rated upon the sum paid for 
 royalties, the sum of £785 14s. being considered by the respondents 
 as the annual value of the royalties paid by him. 
 
 The appellants, John Jones and Joseph Feredey, were the lessees 
 of the coal mines upon which the rate upon them was made, and 
 which are situate in the said parish of Rowley Regis. Sir Horace 
 St. Paul, the owner and lessor of the mines, sunk the pits, and 
 made preparations requisite for working the mines, and then let them 
 to the appellants, Messrs. Jones and Feredey, at a certain fixed roy- 
 alty, not a specific proportion of the amount of sales. £492 12s. 8id. 
 was the amount of royalties paid to the lessor during the last year. 
 The lessees had expended £600 in permanent erections on these mines. 
 The appellants, Messrs. Jones and Feredey, were rated upon the sup- 
 posed amount of the annual sums paid for royalties. The appellant, 
 Josiah Parkes, had been eight years lessee of the mine upon which 
 the rate upon him was made, and which is situate in the said parish 
 of Rowley Regis, and had expended £2,500 in planting the mine and 
 setting it to work. During the last year he had raised coals to the 
 value of £2,500, and during that period had paid £585 in royalties, 
 and was rated upon the supposed amount of the annual sums paid 
 for the royalties. 
 
 Th« questions for consideration are, — first, whether under all the cir- 
 cumstances of the case, Mr. Attwood was properly rated at the sum 
 of £438 9s. in respect of the said coal mine, such sum being the full 
 value of the annual produce of the mine, after deducting the current 
 expenses of working the same ; and, secondly, whether the said J. D. 
 Wightwich, John Jones, and J. Freedey, and Josiah Parkes, were 
 rateable in respect of their occupation of the said coal mines to the full 
 amount of the sums paid for royalties upon the coals raised from 
 such mines. 
 
 Abbott, C. J. — " We are all of opinion that the owner and occupier 
 "ofa coal mine should be rojted at such a sum as it would let for, and 
 " no more. As to the other points, the first was, that the rate should 
 " not be imposed upon the coal produced, because that mas part of the 
 " realty. It is the first time that such a proposition has ever been 
 " submitted, although many coal mines in various parts of the coun- 
 
150 
 
 " try have constantly been rated ; and the argument in support of 
 " it is wholly untenable. 
 
 " The legislature has expressly made coal mines rateable, and they 
 " must be rated for what they produce, viz., the coals. 
 
 " Slate quarries and hrick-earth are also exhausted in a fern years, 
 " but, nevertheless, the rate is always imposed upon that which is 
 " produced. The other argument was, that the rate could not be 
 " imposed until the expense of planting the mine had been recouped. 
 " But I cannot discover any distinction between expenses incurred in 
 " bringing a mine to a productive state, and in building a house. The 
 " attempt to distinguish them is perfectly novel ; and if a house is to 
 " be rated as soon as built and occupied, it must follow that a coal 
 " mine is rateable as soon as it is set at work and produces coals, 
 " although it may happen that the expense of sinking it may never 
 " he recovered. If the tenant of a mine expends money in making 
 " it more productive, that is the same as expending money in im- 
 " proving a farm or a house, in which cases the tenant is rateable for 
 " the improved value." 
 
 Order of sessions amended as to the rate upon Attwood, and con- 
 firmed as to the residue of the rate. 
 
 In this case there are three appellants, each difTerently circum- 
 stanced. By putting the last two in the same category, and assum- 
 ing that the same question was involved in each appeal, the court 
 have applied the same rule to these parties very differently situated. 
 
 In the case of iYieJirst, the parish were evidently in error in rating 
 the occupier for the whole of the year's net profits of working, with- 
 out allowing deductions. 
 
 In that of the second, the court confirms the rate, though that rate is 
 based upon five months' royalty, and not twelve, and takes no account 
 of the outlay of £5,020 in the purchase of the lease, and in setting 
 the mine to work, or winning it. 
 
 In that of the third, the appellants, John Jones and Joseph Feredey, 
 had taken a mine, which the owner had commenced to win ; having 
 sunk pits and otherwise prepared for working ; for this they paid a 
 royalty(not of course a royalty in the same sense as in the second case, 
 for that simply contemplated a right to open ; this contemplates interest 
 
151 
 
 upon the outlay as well). They had also themselves laid out £600 in 
 permanent erections, or had completed the winning. The royalty, 
 moreover, was a certain fixed royalty, not depending upon sales 
 Upon this royalty the rate is based, and the court confirm the rate, 
 the head note enunciating', " the lessee of coal mines is rateable for 
 " the amount of royalty or rent mhioh he pays, and in neither case 
 " is any allowance to be made for money easpended in rendering 
 " the mines productive." 
 
 As to the decisions in this case, the reader had better refresh his 
 memory with another perusal of the General Observations, at page 
 35, and more especially those contained in the second paragraph, ^t 
 page 36. 
 
 In The King v. Lord Granville, (a) 
 
 The defendant appealed against a rate made the 22nd day of A lessee of a 
 
 February, 1828, for the relief of the poor of the parish of Stoke- ""f' ™'r^' 
 m , , , „ being the 
 
 upon-Trent, whereby he was rated for a colhery, including engines occupier, 
 
 and railway, at £61 17s. 5d., being a rate made upon the sum of ^^"'"^S erected 
 
 . ' a steam en- 
 
 £989 185. The court of quarter sessions confirmed the rate, subject gine for work- 
 to the opinion of this court, on the following case : — '°S *^® mine, 
 
 ° and thereby 
 
 improve its 
 
 " The defendant is the lessee and occupier of a colliery in the tal^Wetohe 
 "parish of Stoke-upon-Trent. In the year ending on the 31st of rated for such 
 " December last (1827), he paid to his landlord, for royalty, a mine- ^"al yllue!"" 
 " rent upon the coals raised from the said colliery, viz., the sum of 
 " £802 Is., which sum is a, Jair mine-rent for a tenant to pay upon 
 " the quantity of coals raised in that year. The sum of £802 8s. 
 " forms part of the sum of £989 18s., upon which the defendant 
 " is charged. The defendant, some time since, erected several steam 
 " and other engines in the colliery, which are used solely in draining 
 " the mines, and in raising the coal to the surface ; and he also laid 
 " down a railway, which is solely employed in facilitating the car- 
 
 (ffl) 9 B. & C. 188. 
 
152 
 
 " riage of the coals. These form the machinery with which the 
 " mines are worked, and without which they could not be worked ; 
 " and there would be no mine-rent at all unless such machinery 
 " were used. The sum of £187 10s., which is the remainderof £989 18*. 
 " on which the defendant is charged, is a charge over and above the 
 " amount of the mine -rent introduced into the assessment in respect 
 " of the engines and railway. And it is calculated that if the 
 " colliery were now to be let by the defendant to a sub-tenant, 
 " along with the engines and railways, the total sum of £989 18s. 
 " would not be more than a fair rent for such sub-tenant to pay. If 
 " the court should be of opinion that the defendant ought to be 
 " rated for his engines and railways, in addition to what he 
 " ought to pay as mine-rent to his landlord, then the rate was to 
 " stand ; but if not, then the rate was to be reduced to £50 3s." 
 
 Bayley, J. — " / hai'e no doubt that the defendant ought to he 
 " rated for his engines and railways. Whether the sessions have 
 " made proper deductions we are not to decide. The only point for 
 " our consideration is, ' Whether the defendant ought to be rated 
 " 'for his engines and railways?' If the owner had occupied the 
 " mine he would have been liable to be rated according to the improved 
 " value of the property, and where the owner of a mine fixes an 
 " engine, or otherwise, by expenditure of his capital, raises the value 
 " of his property, he will be rateable for the value of that property so 
 " improved by his expenditure. If it be leased to a tenant, who is 
 " to incur the same expenditure of erecting an engine, the owner 
 " will receive a less (rent or) royalty, but as a greater quantity of 
 " coal will be raised the tenant will be thereby remunerated for his 
 " expenditure, and, I think, the tenant being the occupier, is liable 
 " to be rated for such improved value. The order of sessions must 
 " therefore be confirmed." 
 
 Littledale, J.— " The question is, ' Whether the defendant be liable 
 " ' to be rated at the increased amount mentioned in the case, by 
 "'reason of the engines and railway he has erected?' Generally 
 " speaking, the rate is to be in proportion to the rent. Hei-e the 
 " tenant has erected an engine, which renders the mine more produc- 
 
153 
 
 " tive. It is immaterial, with referenoe to rateahility, mhether the 
 ".landlord or tenant erect an engine, or lay down a railway. The 
 " bargain between the landlord and tenant may be varied on that 
 " account, but the occupier of the property is rateable in respect to 
 " its improved annual value. I think, therefore, that the lessee 
 " of this mine, being the occupier, was properly rated for the 
 " improved value." 
 
 Mr. Justice Parke says, — "The question left to us is, 'Whether the 
 "'defendant be liable tobe rated for improvements?' I think he clearly 
 "is." Concluding as follows: — "The only question for us, how- 
 " ever is, 'whether it he right in principle to rate the lessee in respect 
 " of an annual value, increased iy reason of improvements made hy 
 " himself' I think he was properly rated for the improved value." 
 
 Order of sessions coniirmed. 
 
 The points contended for by the appellants in these two cases being 
 these: 
 
 In the Attmood ease — 
 
 The appellant, being first lessee under the ground landlord, claims 
 to be recouped the whole of the money he had expended in bringing 
 the mine into working order, before the mine was brought into rate 
 at all; virtually saying, " I have built a house upon a piece of land 
 " which was rateable before, but only as land, now you must cease 
 " to rate it as land as the house is built upon it, but you must 
 " not rate the house until by the rent I shall get I shall have been 
 " enabled to get hack the money I have expended in building it." 
 
 And in Lord Granville's ease — 
 
 The appellant being willing to be rated upon the land, though built 
 upon, (this appeal was heard three years after the former,) but 
 objecting to be rated for the house. 
 
 These two cases seem to have disposed of the principle, and to 
 have conclusively placed coal mines in the category of public 
 
154 
 
 companies earning proiits, and of that class thereof where the 
 corpus was exhaustible, classing them with brick fields, ceme- 
 teries, stone quarries, &c. 
 
 The principle upon which coal mines are to be valued being 
 thus settled, the application becomes comparatively easy. 
 
 It is quite true there are some practical difficulties in the 
 way. Coal owners are not required to deposit annual accounts 
 of receipts and expenditure with the clerks of the peace, as is 
 the case with gas and water and other companies ; and the ex- 
 amination of private accounts might be looked upon as inquisi- 
 torial. Still, the amount of coal disposed of during the year 
 at the pit's mouth might very well be supplied, and the amount 
 of royalty paid. This would save the necessity of intruding 
 upon private accounts and going into private profits. The 
 surveyor might well be left, after he had been over the mine 
 and examined its material, to judge for himself what it would 
 cost for bringing the coal to bank. It might be that the 
 owner would not give the amount actually received for coal ; 
 still, if the quantity disposed of was given, then looking at the 
 distance to carry afterwards, whether to the port or to the 
 market, the surveyor might form a very fair idea of what it 
 would fetch. This, with an examination of the buildings, 
 engines, shaft, pumps, and machinery, in order to approximate 
 to the expense of working, would form a very good basis upon 
 which a good surveyor would soon work out an approximate 
 estimate, without going into the books at all. Any estimate, 
 however, thus made, could be at once upset, if found to be 
 based upon figures which any subsequent examinations of the 
 books showed to be incorrect. Still, unless the valuation was 
 grossly in excess, the coal owner might prefer not to produce 
 the books. 
 
155 
 
 The following example of the assessment of coal mines may 
 
 be found useful. 
 
 £ 
 Estimated value of coals at the pit's mouth - 15,000 
 
 Deduct — 
 Working expenses, including the viewer's salaries 
 
 and general office expenses, say 60 per cent 9,000 
 
 Tenant's Capital. 
 
 Cash for wages and materials, and 
 other out-goings, for six 
 months . - - . 4,500 
 
 Tools, tubs, horses, &c., &c., say 
 
 10 per cent, of gross receipts 1,500 
 
 £6,000 
 
 £6,000 
 
 25 per cent, for profits - - - 1,500 
 
 Renewal of plant, (£1,500) 25 per cent., 
 
 say 4 years' life - - - 375 
 
 1,875 
 
 £4,125 
 Less risks and casualties, viz., 5 per cent, upon 
 
 receipts ------- 750 
 
 Gross rent of mine - - - £3,375 
 Less statutables upon the perishable part of the 
 corpus, — tramways, buildings, engines, 
 pumps, machinery, &c., — say - - - 1,000 
 
 Net rateable of mine - - £2,375 
 
156 
 
 The above is given as an example, only to show how the 
 principles laid down in the cases ought to be applied. The 
 figures are purely hypothetical, and must not, therefore, be 
 taken as conveying any opinion as to percentages of expenses 
 or allowances. 
 
 These would vary with circumstances, and each case, there- 
 fore, would have to be treated according to the special circum- 
 stances of the case, but under any circumstances the principles 
 must be adhered to. No local customs of rating would stand on 
 appeal if not in conformity with the principles here shewn, and 
 it must be always remembered that the amount of royalty (for 
 opening up) is no measure or criterion even of rateable value. 
 In some counties coal is rated at so much per ton at the pit's 
 mouth. If this amount is arrived at by applying the principles 
 laid down in the cases, to a particular mine, which has raised so 
 many tons to bank, and haviug ascertained the rateable value 
 of the whole, by calculating what the whole will give per ton 
 raised, — then, as far as that mine is concerned, the rate per ton, 
 unless the condition of the mine and the selling price of the 
 coal materially alter, might be fairly assumed to represent its 
 value from year to year ; but if it is a mere guess in the fii-st 
 instance, or, if having been obtained properly from one mine, 
 the rate per ton is applied indiscriminately to all in the same 
 district, whether under similar conditions of working or not, 
 then the practice would never stand. 
 
 Colliery managers are in the habit of confounding the value 
 to buy with the value to rent. They understand well the 
 former, but they do not or will not understand the latter. They 
 consider, and consider correctly, that the difference in value, 
 between the royalty price and the selling price at the pit's 
 mouth, is made up of working expenses, provision for redemp- 
 tion of capital and trader's profits, — but when they contend 
 that none of these ought to be rated under the present system 
 of the Poor Law, they contend wrongly. 
 
 The purchaser of a mine simply purchases the interest of the 
 
157 
 
 vendor; he would, equally with the vendor, have to provide 
 for the expenses of working. He would expect to have his 
 capital redeemed to him by the time the mine was worked out, 
 and he would expect to make the usual profits of a trader ; he 
 would expect them, he might not get them, but the selling 
 price of the coal would include the three, if the state of the 
 market could admit of it. Suppose, after a time, the purchaser 
 gets tired of working the mine himself, and seeking to let it, 
 what does he let in the selling price of the coal ? not the first 
 or working expenses, for the tenant would also have to pay 
 them ; not the the third, the trader's profits, for these are not 
 rateable, but belong to him — the tenant could give no rent for 
 these two — what does he then let but the second ? for which, 
 as it would of necessity include to him the landlord, a redemp- 
 tion of capital invested in a terminable concern, he would ex- 
 pect a higher interest than he would do, were the property 
 permanent. When, therefore, coal managers contend that not 
 one of the three is rateable, it is clear they do not understand 
 the subject. 
 
 If they had defined the difference between the royalty and 
 selling price to be working expenses, interest of outlay for winning 
 the colliery, redemption of that outlay, (the two together being 
 the rent to be added to the royalty,) and tenant's profits, they 
 would probably have seen, were they open to conviction, that 
 these two, the interest and the redemption constituted the 
 interest of the building owner of house property, which, added 
 to the royalty or ground landlord's interest, constituted the 
 letting rent, to be afterwards reduced to the rateable by the 
 deductions. 
 
158 
 
 SECTION IV. 
 
 In the case ot quarries or excavations for the purpose of 
 obtaining stone, slate, and other material from the earth, the 
 question of their rateability turns solely on whether they are open 
 quarries, so that they approximate in nature to, and may be 
 classed with brick fields, being of ejusdem generis, or whether 
 they are closed ; and so are found to be identical with mines. 
 The principal of the decided cases on this point are, Sex v. 
 Sedgeley, and Rex v. Breitel. The first was the case of lime- 
 stone ; the second was the case of a stratum or substance, 
 called "glasshouse pit clay, or fire-brick clay;" and in both 
 cases it appeared that the excavations were equivalent in their 
 nature to mines, and were therefore not rateable. 
 
 In the first case, viz., that of Rex v. Inhabitants of 
 Sedgeley (a), it is laid down, that — 
 
 " The express mention in the statute 43 Eliz. c. 2, s. ], of 
 " coal mines, is a virtual exclusion of all other mines ; conse- 
 " quently, other mines are not rateable to the relief of the poor(J). 
 " Whether an excavation in the earth, from which limestone is 
 " obtained, be a mine or not, is a question of fact. But when 
 " the sessions found that the limestone was obtained and raised 
 " by sinking shafts perpendicularly down to the stratum, which 
 " lay forty or fifty yards below the surface of the ground, and 
 " that the stratum was worked by roads and gateheads, and the 
 " stone raised to the surface by machinery, or carried under 
 
 {a) 2 B. & Ad. 65. 
 
 (J) Last year, 1867-8, a bill was brought into the Commons to make 
 all mines rateable, but political matters so engrossed the House, that it was 
 for the present withdrawn. 
 
159 
 
 " ground to a tunnel (which is the mode used in obtaining coal 
 '• and ironstone), the court held, that the property was a lime- 
 " stone mine, and therefore not rateable to the relief of the 
 " poor." 
 
 Eex V. Brettel (e). 
 
 In B,ex V. Brettel, Lord Tenterden, C. J., said, " I see no 
 " reason to depart from the opinion which I delivered in Jtex 
 " V. Sedgeley. The only difference between that and the present 
 " case consists in the character of the commodity obtained. The 
 " mode of obtaining it is the same. Now, that case establishes, 
 " that in order to determine whether an excavation in the earth 
 " constitute a mine or not, we are to look to the mode in which 
 " the article is obtained, and not to its chemical or geological 
 " character. Here, as in Sex v. Sedgeley, the substance is 
 " obtained by what in the ordinary, and indeed in every sense 
 " of the word, is mining ; that being so, these clay pits are 
 " mines, and consequently are not rateable to the relief of the 
 « poor." 
 
 The sole question, therefore, for consideration, is a question of 
 fact, should the quarry be properly called a mine ? if so, it is 
 not rateable ; but if not, and it is, as the word usually means, 
 an open cutting, then it is rateable. 
 
 (o) 1 L. J. (N. S.) M. C. 146; 3 B. & Ad. 424. 
 
APPENDIX. 
 
 Formula for Conversion of Weekly Rents into Annual Values, 
 with an Example of its application to a particular Case. 
 
 Given the following data : — 
 
 Tenant's rates, 5s. in the £ on the net. 
 Sewers rates Is. „ £ „ do. 
 Water rate Is. „ £ on the gross. 
 Collection, say 10 per cent, of amount collected. 
 Repairs and insurance, say, 30 per cent, of gross. 
 
 Let X = net rateable ; 
 then -^ X = repairs and insurance (a) ; 
 and -^ a? + ^ = ^ a; = statutables ; 
 therefore x-^^x-=^x = gross ; 
 and ^ of M a; = -H^ x — w-ater rate ; 
 and § = tenant's rates. 
 Then if R = the year's weekly rents, 
 R — ^ = ^ R = net rents ; 
 anda;+Ma; + ^«+5=T^R; 
 and X = 0-498 of R = f . 
 
 (o) Let ^^j = percentage of gross = repairs and insurance = S. 
 Let R = rateable tiien R + S = gross ; 
 and -P^ (R + S) = S ; 
 
 P 
 
 whence S = jqo— p ' ^ J 
 and \fp = 30, 
 thenS=T5#^-R=?-R = ^R. 
 
163 
 
 ALLOCATION OF WORKING EXPENSES. 
 
 The modes of allocating the Working Expenses of the whole Railway to 
 any one Parish through which it passes, are so many and so different, 
 that it may be desirable to see them at a glance, so as to compare them. 
 
 Items of Expenditure 
 and of Deduction. 
 
 Maintenauce of way 
 
 Locomotive power Per length mile Per train mile Per receipts 
 
 Carriage and wag- 
 gon repairs 
 
 Miscellaneous ex- 
 penses 
 
 Government duty 
 
 Tithe rent charge 
 
 Rates and taxes 
 
 Kateable value of 
 stations 
 
 Gross estimated 
 Rental of ditto 
 
 Tenant's interest 
 
 „ profits 
 
 „ risks 
 
 ,, deprecia- 
 tion 
 
 Renewal of way 
 and works 
 
 Various modes of apportionment as contended for under different 
 circumstances. 
 
 Per length mile Per train mile What it did cost What it should 
 
 cost. 
 
 What it should 
 cost. 
 
 What they 
 should cost. 
 
 Per carriage Per train mile Per receipts 
 mile 
 
 Per receipts Per train mile Per length mile Divided into 
 
 transit charges 
 and station 
 charges, and 
 apportioned as 
 per receipt 
 and per train 
 mile. 
 
 Per passenger Per g^ross re- The loial cost, 
 rents ceipts 
 
 The local cost. 
 
 The local cost. 
 
 Per receipts. 
 
 Per receipts. 
 
 Per receipts 
 Per receipts 
 Per receipts 
 Per receipts 
 
 Per length mile Per train mile. 
 
 Per length mile Per train mile. 
 
 Per length mile Per train mile. 
 
 Per length mile Per train mile. 
 
 What it should Per length mile, or Per train mile, 
 cost 
 
INDEX. 
 
 PAGE 
 
 Allocation of expenses (schedule) ... 163 
 
 Allowances, in case of railways - - - 28 
 
 Annuity, not necessarily a measure of rateable value - 49 
 
 Appeal by ratepayer - - - - . -21 
 
 Appendix - - - - 162 
 
 Beneficial occupation of the soil rateable - - - l!-1 
 
 Brick Fields 124, 135 
 
 Cases, Table of - - - - - - - ix, x 
 
 Carriage and waggon expenses - - - - - 31 
 
 of repairs - - - 88 
 
 Cemeteries - - - - - - - 194, 140 
 
 Clearing House ...... qq 
 
 Coal mines ....... 124. 145 
 
 assessment of - - - 155 
 
 Collateral guarantee no measure of rateable value - - 47 
 
 Contributive value ... - - 64, 65 
 
 recognized .... 49 
 
 Dorking Case - - - - - 70 
 
 Cannock Case- - - - 71 
 
 Haugbley Case - 76 
 
 Court will not disturb facts as found by arbitration 82 
 
 Disbursements in case of railways - 27 
 
 N 
 
Index. 
 
 Easements rateable ... 
 
 Expenses, allocation of - - 
 
 Extracts from Act of 1862 - 
 
 1864 - - - - 
 6 & 7 Will. 4, c. 96 - 
 
 Gasworks, assessment of - - 
 
 subdivision of) among parishes 
 General charges - - " - - 
 Government duty - - 
 Gross rental, former views of - - 
 
 where tenant is not his own landlord 
 
 where he is 
 Gross receipts ---... 
 Gross rent, deductions from - - - 
 
 (See Statutables.) 
 
 Half-yearly accounts, how to be corrected 
 
 Income tax, how to be based 
 
 no deduction . - . - 
 Insurance . - - - ... 
 
 Locomotive account . . - 
 
 expenses ------ 
 
 Losses on branches ----- 
 
 Maintenance of way, a statutable - - - 
 Mileage principle discarded - - - - ■ 
 Mines, coal 
 
 PAGE 
 
 42, 56, 59 
 
 163 
 
 1 
 
 10 
 
 - 12 
 
 - 108 
 
 - 113 
 
 31 
 
 - 90 
 18, 19 
 
 19 
 23 
 24 
 26 
 
 
 1£ 
 
 .,18 
 
 
 - 
 
 40 
 
 
 - 
 
 26 
 
 
 . 
 
 30 
 
 
 - 
 
 86 
 
 
 - 
 
 40 
 
 29 
 
 ,85, 
 
 105 
 
 
 - 
 
 33 
 
 
 124, 
 
 145 
 
 Net rateable value, how ascertained 
 
 Parochial system adopted 
 
 confirmed - 
 
 29 
 
 38 
 41 
 
Index. 
 
 PAGE 
 
 Profits, division of - - - - - - 25 
 
 Promoting expenses, no deduction of - - - 40 
 
 Quarries ---- .... i^g 
 
 Railways, assessment of - - - - 27 
 
 comparative estimate - - 32, 33 
 
 historj^ of rating - - - - 35 
 
 Rate calculated on latest published accounts - - 43 
 
 Rating, system of, laid down by the court - 44 — 47 
 
 Rates, and taxes --- ....31 
 
 E.enewal of stock, tenant's allowance for - 26 
 
 Renewal of way, how to be charged - - - 40 
 
 included in maintenance of railways - 84 
 Rent, not necessarily rateable value - - 21 — 23 
 
 Rent paid for easements rateable - - - - 53 
 
 Repairs ----- -- 26 
 
 to be averaged - - - 20, 30 
 
 landlord's - 84 
 
 (See Statutables.) 
 
 Station, how to be rated - - - - 40,61 
 
 assessment contributive fund - - - - 106 
 
 Statutables - . . - - 26 
 
 maintenance of way - - - - 29, 84 
 
 Stock-in-trade - - - . . 24 
 
 depreciation and value of - - - - - 103 
 
 Tenant's working expenses in case of railways, &c. - 25 
 
 allowances - - - - - 31 
 
 fixtures 59 — 61 
 
 profits ------- 28 
 
 include what ----- 28 
 
 Mr. Pashley's opinion - - - - 92 
 
 Mr. Ellis's opinion .... 99 
 
Indem. 
 
 PAOE 
 
 Tenant's capital - ...... 102 
 
 (See Reg. v. Great Wettern Railreay Company.) 
 Tenant's capital, allocation of - - - - - 104 
 
 Tenant's repairs, apportionment of- - - - 85 
 
 Terminals, how distributable ... 65 — 69 
 
 Tithe-rent charge - - - - • - 91 
 
 Tolls - - 29, 38, 39 
 
 when to be deducted ..... 62 — 63 
 
 Waterworks, assessment of - - - - - -111 
 
 subdivision of, among- parishes ... 113 
 Weekly rents, conversion of ..... 162 
 
 London : Printed by Shaw & Sons, Fettor Lane. 
 
 / 7^ 
 

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