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be invalid or ineffectual if a surrender had been made to the use of the last will and testament of the person attempting to dispose of the same." Construing the first and third sections together, it is quite clear that the statute does not apply to a case like the present.

[*59

*Jervis, contrà. The surrender was to the use of John Hickman for life, and after his decease to the use of such person as he should by will executed in the presence of three witnesses appoint; and in default of such surrender or appointment, to himself in fee. There has been no will executed in the presence of three witnesses, and consequently there has been a default of such appointment as is pointed out in the surrender; the fee, therefore, vested in the testator; and the will afterwards made, though it does not operate as a good execution of the power, will operate on the reversion in fee, and the want of a surrender to the uses of that will which was actually executed in this case, will be supplied by the statute. Cur. adv. vult.

PARKE, J., in the course of this term, delivered the judgment of the Court. It was admitted in this case, on the part of the defendants, that the will of John Hickman was not a good execution of the power given to him by the surrender of the 16th of July, 1806, in consequence of its not having been executed in the presence of, and attested by, three witnesses; but it was contended, that it might operate on the reversion in fee which was vested in him in default of appointment, and that the want of a surrender to the use of his will was cured by the statute 55 G. 3, c. 192. It is clear that if there had been a surrender previously made by John Hickman to the use of his will, the will would have conveyed his interest, notwithstanding it was attested only by two witnesses, for copyholds are neither within the statute of wills nor the statute of frauds. And where a man hath both a power and an *interest, an instrument, if it be [*60 sufficient for the purpose, may operate as a conveyance of the interest, although it be defective as an execution of the power. It was argued for the lessor of the plaintiff, that this was not a case within the statute 55 G. 3, c. 192 but we see no reason for saying so. That statute enacts, that in all cases where, by custom, any copyhold tenant may, by his last will, dispose of or appoint his copyhold tenements, the same having been surrendered to such uses as should be declared by such last will, every disposition made or to be made by any such last will, by any person who shall die after the passing of that act, of any such copyhold tenements, or of any right, title, or interest in or to the same, shall be as valid and effectual to all intents and purposes, although no surrender shall have been made to the use of the last will and testament of such person, as the same would have been if a surrender had been made to the use of such will. Here John Hickman died after the passing of that act; and, therefore, the disposition by his will was as valid as if a surrender had been made to the use of it.

We think, therefore, that judgment must be entered for the defendants. Judgment for the defendants.

*The KING v. THOMAS ANDREWS ADAMES.

[*61

Lands are rateable to the relief of the poor, in proportion to the net rent which a tenant at rack rent would pay, he discharging all rates, charges and outgoings: and therefore an occupier (whatever be his interest) of land which requires to be protected from floods at an occasional expense defrayed by a sewer's rate is not rateable to the poor at the same sum as the occupier of lands of similar quality and equal annual produce in the same parish not liable to the sewer's rate; but he should be rated at that sum, minus the sewer's rate.

By a rate for the relief of the poor of the parish of Pagham in Sussex, allowed November 1830, the defendant, who was owner and occupier of lands lying with

in a district of the parish called Pagham Level, was assessed at 1s. 8d. in the pound on the sum of 3127. 14s. 5d. annual value, against which he appealed. The appeal coming on, to be heard at the April sessions 1831, was respited; and in the mean time it was referred by the Court to three valuers, to survey and value the parish. At the July sessions, 1831, the valuers, having made their valuation, stated that the amount assessed by them upon each occupier of lands within the parish, was the sum which they considered the land would let for, but that they had not made any allowance for moneys paid for sewers' rates. The sessions confirmed the valuation, subject to the opinion of this Court, on the question whether or not the sewers' rate paid by the defendant ought to have been deducted from the sum assessed on him? The valuers stated in evidence that the sewers' rate was universally understood to be a landlord's tax; that they had never been called upon to make any deduction from the value of lands in respect thereof; and that they would not have thought of making any special note on the point, had they not been requested on the part of the appellant to do so, in consequence of the pending dispute. The sum assessed on the defendant in this valuation was 3067. 6d. The sewers' rate is paid by those only who are owners *of lands within Pagham Level. This case was argued *62] in last Easter term.(a)

Capron in support of the rate. This being a landlord's tax, the question is whether it ought to be deducted from the sum at which the appellant is rated, he being proprietor as well as occupier? As a matter of convenience, the rent bona fide paid by a tenant has for many years been adopted as the critterion on which the poor rates are framed. The poor rate is therefore necessarily considered as an occupation rate. The sewers' rate, on the contrary, is admitted to be a burthen on the landlord, depending, like many other charges, on the nature and situation of his estate or his interest therein. Land-tax, ground and quit rents, &c., which are charges on the landlord, are never deducted. [PARKE, J. The effect of the decision of the sessions, is to make land requiring expense to protect it from the sea of the same value as land not requiring that expense.] It is of the same value to the party liable to the poor rate, i. e. the occupier. [PARKE, J. But the real profit derivable from the land is pro tanto diminished.] So it is where the land-tax is unredeemed, yet no deduction was ever claimed on that ground. Again, where money is laid out in improvements, as drainage, &c., under which head the sewers' rate may be fairly classed, no allowance is made in respect of it, even for interest on the capital so employed. Neither is the state of the farm buildings ever made the subject of consideration, though, in order to render them available for the beneficial occupation of the property, an extensive outlay may be often necessary, and the landlord has a right to debit the land with

*interest on his capital so expended, as well on that more immediately ap*63] plied to the cultivation of the farm and the purchase of stock for that purpose. If this be so why should the sewers' rate be deducted? The profits of the land are equally affected in both cases. There is another view of the subject, with reference to the amount of the landlord's interest. Suppose he holds under an ecclesiastical lease, paying every seventh year a heavy but certain fine for renewal, this fine must constitute a portion of his necessary expenses in respect of the land, yet cannot either annually or in any other mode affect the rate. It might even be contended that annuities payable out of the landlord's estate, interest on mortgages, and other incumbrances of this kind must become the subjects of consideration, if we lose sight of what has always been, in practice at least, the basis of the poor rate; viz., the beneficial occupation. According to the argument which must be maintained on the other side, two adjoining farms of equal productive value, and under precisely similar circumstances, must be differently rated if the owner happens to occupy one and let the other; for it will not be contended that the tenant can claim relief, as he is clearly not aggrieved

(a) Before Lord Tenterden, C. J., Littledale, Park and Patteson, Js.

by the rate. The whole present system of rating must be abandoned, and a new principle adopted in almost every parish.

Long and W. H. Scott contrà. Undoubtedly in assessing land to the relief of the poor, rent is in ordinary cases to be the criterion of the annual value of the land to an occupier. That is a good general rule, but it is not universal, for suppose land would give a profit just sufficient to pay the expenses of cultivation and no *more, there would then be no rent, but it cold not be [*64 said that such land should pay nothing. The statute 43 Eliz. c. 2, requires the churchwardens and overseers to raise competent sums by the taxation of every occupier of land according to the ability of the parish. The object undoubtedly was to subject to rate the profit equally which accrues from every species of property in the parish. In practice, personal property has been given up, on account of the difficulty of ascertaining its amount, but as to real property, the principal of equality is preserved. It cannot be said that a farm burdened with a tax by reason of its being necessary to provide against the ravages of the sea, is of equal value with another which is not burdened with that tax. It may be considered in the same light as if part of the land had been swallowed up by the sea. It is difficult to say why rent, which is the landlord's share of the profit of the land, has been made the criterion of the annual value to an occupier. It may be convenient that it should be so, but it is not the true criterion. The tenant's and landlord's profit will vary respectively according to the fertility of the land. If it be a very rich soil, the landlord's share of the profit (the rent) will be in greater proportion to the whole value; if it be very poor land, it will be smaller. [Lord TENTERDEN, C. J. Is there any instance of an express deduction in the rent on account of paying sewers' rate or land tax?] There is none known of. [Lord TENTERDEN. Suppose one owner of land in a parish to redeem his land tax and others not. The person who has redeemed the land tax has paid his money; the other has it to pay. Then if the land got into other hands, could the tenant on whose land the land tax has not

been redeemed, claim to be rated differently?] The subject of rate is [*65

the landlord's profit. Whatever diminishes that profit ought also to reduce the rate. The rent here is not the landlord's real share of the profit, because his profit is the rent less the sewer's rate. The net annual profit is the gross profit, deducting thereout the expenses of cultivation, the interest of money laid out in stocking the land, &c. Rex v. Lord Granville, 9 B. & C. 188; Rex v. Lower Mitton, 9 B. & C. 810; Rex v. Tomlinson, 9 B. & C. 163; Rex v. The Oxford Canal Company, 10 B. & C. 163; Rex Joddrell, 1 B. & Ad. 403. [Lord TENTERDEN, C. J. Suppose the land had been let and the landlord had paid sewers' rates, could the tenant have been relieved?] There is no reason why he should not if he and the landlord had entered into an agreement on this point; but even without an agreement, the sewers' rate would be considered in fixing the rent. The rent, if the land were let and the sewers' rate allowed for in it, would be a fair criterion of the value. [Lord TENTERDEN, C. J. Of the value to the occupier, but not of the property. PARK, J. It is immaterial whether the landlord or tenant occupies. The sewers' rate is an outgoing which diminishes the annual profit to whoever pays it.]

PARKE, J., now delivered the judgment of the Court.

The question for the opinion of the Court in this case, is, in effect, whether the occupier of lands in a district of the parish of Pagham, which is liable to be flooded, and is protected from floods at a certain occasional expense, (for that is the nature of the sewers' rate), ought to be rated at the same sum as the occupier of lands of similar *quality and of equal annual produce, lying in the same parish, but not liable to the same expense.

[*66 We are of opinion that he ought not. It is obvious that the average annual net profit of one description of land is not the same as that of the other; and, both upon principle and authority, we think the rate ought to be made in proportion to that profit. The statute 43 Eliz. c. 2, requires the churchwardens

and overseers to raise competent sums, by the taxation of every occupier of lands, according to the ability of the parish: nothing is expressly said as to the principle upon which the rate should be made, but it is implied that it must be made with equality, and with some reference to the subject of occupation.

Now it is quite clear it ought not to be made according to the profit derived by the occupier himself; for if that were so, the rate must vary according to the nature of the occupier's interest. An occupier who is tenant at will at rack-rent, and therefore receives a less share of the annual profit of the land than one who is tenant for years at a small rent, and still less than one who is a tenant in fee simple, and pays none at all, would be rateable at a less sum; a proposition which was never yet contended for.

Again, it is quite clear, that though the occupier is the person who nominally pays the tax, it is in reality paid by the beneficial owner, and is a charge upon the land. In proportion as the average tax which the tenant has to pay, is greater, in the same proportion will he give less rent to the owner. Ultimately, in the long run, this will always be the case; though when the tenancy is for a term more or less long, the burthen upon the land is postponed for a greater or less period. This being so, it follows that, in order to make an equal rate, the *67] *nature of the occupier's interest must be disregarded, and the rate imposed according to some value of the subject of occupation. Usage and convenience have established this value to be not that of the estate or property itself, but that of the profit which is or might be made from the estate or property; and as it would be very difficult and extremely troublesome to ascertain the precise value of that profit during the time for which each rate is made, and in case of occasional profit both troublesome and unjust, (Rex v. Mirfield, 10 East, 219, Rex v. Hull Dock Company, 5 M. & S. 394,) to make a rate for a large sum at one time and a small one or none at another, upon the same land, the rule has been to assess according to the annual profit of the land; or where the produce is not matured in one year, then upon an average of years, from which profit deductions are allowed for all the expenses necessary to its production. It is not material whether the whole or a certain aliquot part of that net profit be rated, provided all lands of the same description are rated equally upon that aliquot proportion of the profit; and in practice it is usual, and it is most convenient, to rate lands at the rack-rent which they would pay to a landlord, or some certain portion of it, the tenant paying all rates, charges and outgoings; which is in effect rating according to a part of the net profit only; but provided it be the same aliquot part in all cases, it makes no difference.

Further, if the subject of occupation be of a perishable nature, or require an annual expense to secure its existence, an allowance ought to be made on this account; for the total annual profit is not the net annual profit; a part must be set aside for the restoration and maintenance *of the subject of occupation. *68] It is on this principle that buildings have been permitted to be rated at less in proportion than arable and other land. The cases, especially those of a more recent date, in which the principle of rating has been more fully discussed and considered, will be found to have established this rule of rating, which is, in other words, that all lands are to be assessed in proportion to the net rent which a tenant at rack-rent would pay, he discharging all rates, charges and outgoings.

It may be sufficient to refer to the following authorities in support of this position. Rex v. The Birmingham Gas Light and Coke Company, 1 B & C. 506, Rex v. Hull Dock Company, 3 B. & C. 516, Rex v. Attwood, 6 B. & C. 277, Rex v. Trustees of the Duke of Bridgewater, 9 B. & C. 68, Rex v. Tomlinson, 9 B. & C. 163, Rex v. Lower Mitton, 9 B. & C. 810, Rex v. The Oxford Canal Company, 10 B. & C. 163, Rex v. Joddrell, 1 B. & Ad. 403. It remains only to apply the principle to the present case, and there can be no difficulty in saying, that land which requires some occasional expenditure to preserve it from being damaged by water, and to make it as productive as it is, would let for

less rent than similar land which requires none, the tenant defraying amongst others that occasional expenditure. In other words, the net average annual profit of both is not the same, and consequently the rate ought not to be the same.

In the course of the argument a question was asked, whether land of which the land-tax was redeemed ought to be rated higher than land of the same quality, which is still chargeable with the tax. The answer is, that it ought not the annual net profit of both is the same, *though such annual [*69 profit in the latter case is liable to a tax from which it is by law exempted in the former. The rate in the present case must therefore be amended. I must add that this is the judgment of myself and my brothers Littledale and Patteson, who heard the argument. Lord Tenterden was of a different opinion.

TAUNTON, J., then said that he concurred in the judgment delivered.

The Company of Proprietors of the WITHAM Navigation v. PADLEY and Others. Nov. 2.

In trespass against surveyors of the highways for pulling down a watch-house, the act 13 G. 3, c. 78, s. 82, does not enable them under a plea not guilty, to justify the removing it as being a nuisance on the highway.

TRESPASS for breaking and entering the plaintiff's close, and pulling down a watch-house. Plea, general issue. At the trial before Parke, J., at the Lincoln Summer assizes, 1832, the pulling down the watch-house was admitted; and the defence was that it was placed on the highway, and that the defendants, as surveyors of the highways, (after notice) pulled it down, being a public nuisance and obstruction. The learned Judge was of opinion that though the locus in quo was a highway, and the watchhouse erected thereon a nuisance, the defendants could not justify the pulling of it down under the general issue; and he directed the jury to find a verdict for the plaintiff.

Amos now moved for a new trial, on the ground of misdirection. The 13 G. 3, c. 78, s. 82, enacts, that "if any action shall be commenced against any person for any *thing done in pursuance of that act, the defendant may [*70 plead the general issue, and give the act and the special matter in evidence, and that the same was done in pursuance and by the authority of the act." The removal of an obstruction of this sort was incident to the general duties of a surveyor of the highways. By section 12, "the surveyors are to view all highways, &c.; and in case they shall observe any nuisances, encroachments, obstructions, or annoyances, contrary to the directions of that act, they are to cause notice to be given to any person doing, committing, or permitting the same; and if such nuisance, &c. shall not be removed within twenty days after such notice, then the surveyors are authorized to remove the same, and are to be reimbursed their expenses by the party offending." The ninth section is confined to moveables only, but this is general, and extends to every obstruction. In the case of obstructions and nuisances to highways, the remedy by indictment is often inadequate, and more prejudicial to the prosecutor than the evil complained of. A summary power of removing annoyances is highly desirable: and the surveyors, rather than private individuals, ought to execute that power. But the surveyors may not be obstructed by a nuisance of this kind in respect of their individual convenience of passage, and, if not, they cannot plead the special justification which would be adapted to such a case. They justify, as acting in exercise of their public duty; and it is clear that whatever they are authorized to do in discharge of that duty, may be given in evidence under the general issue. The watch-house in question was an impediment to the execution of "the directions of the act," inasmuch as it impeded the freedom of the passage, which the sur

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