a certain portion of the amount arising from the sale of all the ores, at the option of the lessor. It was held, that the lessor was rateable in respect of the profits arising from the mine in the value of his portion of the ores, as the profits of land; *for he still continued to be the occupier of the mine, and the adventurers had not the unqualified occupation, but were merely [*167 entitled to take a certain part of the produce of the land as a remuneration for their expenditure, risk, and labour, in raising the rest for the owner. It was not material that the lessor had always elected to be paid in money, for in taking his portion and so paying him, the adventurers were simply in the situation of purchasers.

On the other hand, in Rex v. The Earl of Pomfret, 5 M. & S. 139, the proprietor of the soil, having made a demise of the land in which there were mines, with a power to work them, reserving a certain pecuniary rent, was held not to be rateable in respect of the rent, because the lessee under such demise was the exclusive occupier of the mines, and the profits of land were rateable only in the hands of the occupier, the rent reserved being merely a criterion of the amount of the profits, and not itself rateable. In Rex v. The Bishop of Rochester, 12 East, 353, nothing was left in the grantors; the mines were let, and wholly out of their power; and there was a money rent reserved. The grantors there were held not rateable, there being no occupation of any thing by them within the 43 Eliz. c. 2.

The question is, to which class of cases the present belongs, and if the two conflict, which is to prevail? Here, there is no demise of the land or of the mine, but of a mere liberty to dig, as there was in Rex v. St. Austell, 5 B. & A. 693: now, whatever did not pass out of the grantor by the deed, remained in him; a mere easement passed and not the soil; that therefore remained in Mr. Tremayne. *Between this case and Rex v. St. Austell, 5 B. & A. 693, [*168 the difference is, that in the latter, the adventurers were to leave a certain proportion of the ore for the use of the grantor; and here, the adventurers are to pay 17. 15s. for every ton raised; and Lord Tenterden distinguishes Rex v. St. Austell from Rex v. The Eart of Pomfret, 5 M. & S. 139, on the ground that in the latter there was an absolute demise of all the mines, under which both the possession of that part which was worked, and that which was not worked, passed to the lessees, whereas, in Rex v. St. Austell, there was an express reservation of part; the relation of the parties was not that of landlord and tenant. So here Tremayne has reserved to himself all but a mere liberty to dig on part of the lands. [PARKE, J. What portion of the soil does Tremayne occupy?] Whatever portion yields the ore in respect of which he receives the money pay

ment.

Tre

The same question might have been put in Rex v. St. Austell. mayne occupies the land producing the ore till it is separated. [PARKE, J. He has no right to any portion of the rude ore.] He does not cease to be an occupier of the soil because another person may take ore from it. So long as the ore is not severed from the land, it is parcel of the freehold, and is his property; when severed, it becomes personal property, and belongs to another. [PARKE, J. The decisions on which you rely, proceeded on the ground that a certain portion of the rude ore was reserved to the lord. If Mr. Tremayne, as you contend, is the occupier of the mine, then, as such, he is not rateable.] In Rowls v. Gells, Cowp. 451, there was in part a pecuniary rent, the cope being sixpence for every load or nine dishes of lead ore raised at the mines. [PARKE, J. [*169 That distinction was not pressed on the attention of the Court, and the principles on which such property is rateable were not so well understood as they are now.] The result of all the authorities is, that where by lease the interest in the land has passed out of the grantor, the grantee is rateable, but where such interest has not passed, the grantor is. Then, if Mr. Tremayne was the occupier of the land, he was clearly a beneficial occupier in respect of the 17. 15s. per ton, which he receives on all the ore raised.

Crowder, with whom were Praed and Follet contrà, was stopped by the Court.

DENMAN, C. J. The rate cannot be supported. Here the landlord receives a rent, and is not the occupier of the soil as in Rowls v. Gells Cowp. 451. In Rex v. St. Austell, 5 B. & A. 693, the landlord, by the express terms of the grant, was to be paid, not by money, but by the produce of a part of the mine, unless he elected to be paid in money. Here he is paid by a sum of money, in proportion to the weight of manganese raised; but he has no right to any portion of the ore. If we had any doubt, we would permit the rate to stand, that the party rated might bring an action; but we have no doubt whatThe order of sessions must therefore be quashed.

ever.

PARKE, J. A party can only be rateable as the occupier of land. Mr. Tremayne is not the occupier of the soil; he receives a money rent.

Here
The

case falls within *Rex v. The Earl of Pomfret, 5 M. & S. 139. It is *170] said that no interest in the land passed, but a mere authority to the grantee to dig. That may be so, and, in that respect, the case resembles Rex v. St. Austell; but then it would follow that Tremayne is himself the occupier by his agents; and if so, as the owner of mines, he is exempt from rateability by the statute of Elizabeth, and the nature of the property, and he could not be rated unless for dues. This case is distinguished from Rowls v. Gells, Cowp. 451; Rex v. The Baptist Mill Company, 1 M. & S. 612, and Rex v. St. Austell, 5 B. & A. 693, because, here, the owner is not entitled to any portion of what may be called the soil. The ground of the decisions in those cases was, that the reserved ore was a portion of the soil, and that the party entitled to it was therefore the occupier; but here, if he was not entitled to that portion of the soil, he is not the occupier, and then this is like the case of Rex v. The Earl of Pomfret, (where the reservation was not of a part of the soil, but of something different,) and is distinguishable on that ground from Rex v. St. Austell and the other cases, where a portion of the mineral itself was received.

TAUNTON, J. I entirely concur. The distinction is very subtle; but the cases may, perhaps, be reconciled by distinguishing between a reservation of a rent, and a reservation of part of the soil itself. In the latter case, the lessor has been considered as occupying that part of the soil which he has so reserved. *171] Here there is a pecuniary rent reserved, and no reservation of any *part of the soil. If we were to hold that Mr. Tremayne was rateable here, we should be shaking a well established principle, that a landlord is not rateable for his rent. And again, if Mr. Tremayne is to be considered as the occupier of the soil of the mine, and the lessees as his agents, he is not liable to be rated; because coal mines are the only mines mentioned in the statute of Elizabeth, which has therefore been construed to exclude all others.

PATTESON, J. I am of the same opinion. The rule is very clearly laid down by Le Blanc, J. in Rex v. The Baptist Mill Company, 1 M. & S. 612 : "Where a person receives without risk part of the produce extracted from the bowels of the earth, he is an occupier of land; but where he merely receives a rent or money payment, there he is not an occupier." Here Mr. Tremayne is not the receiver of what is extracted from the bowels of the earth, but of money. He is not liable, therefore, to be rated as an occupier of land.

Order of sessions quashed.

*172]

*HEATH v. SANSOM and EVANS. Nov. 12th.

S. and E. were partners in alum works, for an indefinite period. E. was a dormant partner. In January, 1829, it was agreed that the settlement of the partnership accounts, and all questions concerning the respective liabilities, and the mode of winding up the affairs, and the manner and time of dissolving the partnership, should be referred to an arbitrator; and it was afterwards agreed that S. and E. should respectively bid for the plant, utensils, and fixtures, and the referee was to declare the highest bidder to be the

purchaser. In April, 1829, S. having been declared the highest bidder, became the purchaser, and the works were entirely given up to him: Held, that the partnership was then determined, although the referee had made no order as to the dissolution; and that S. had no authority, after that time, to bind E. by a promissory note.

ASSUMPSIT by the plaintiff, as indorsee, against the defendants, as makers, of a promissory note for 3007., dated July 1st, 1829. Plea, by the defendant Evans, the general issue. Sansom suffered judgment by default. A rule in this case, for a new trial, having been made absolute, in Easter term, 1831, (see 2 B. & Ad. 291,) the cause came on to be tried before Lord Tenderden, C. J., at the sittings in Middlesex after Hilary term, 1832, and the following facts were proved:-Before January, 1829, Sansom and Evans were partners in some alum works at Bristol; Evans was not held out to the world as a partner; the trade was carried on under the style and firm of Philip Sansom & Co. On the 26th of January, 1829, Sansom and Evans agreed that the settlement of the accounts of the partnership subsisting between them as manufacturers of alum, and all questions between them concerning their respective liabilities in the partnership transactions, the mode of winding up the affairs of the partnershipship, and the manner and time of dissolving it, should be referred to the deci sion of H. O. Price; and that they would abide by his decision. In April, 1829, it was agreed between Sansom and Evans, as to the disposal of the plant, utensils, and fixtures on the alum works, that each should separately offer a price, which was to be communicated to the referee, and he was [*173 then to declare the highest bidder to be the purchaser; such purchaser to give a bill for the purchase money, and to be entitled to the possession of the goods purchased. In the same month of April, Sansom having, by letter to the referee, made a tender of 1307. for the said plant, utensils, and fixtures, they were declared by the referee to be his property; and the works were entirely given up to him. In July, 1829, Sansom, being called upon by the Droitwich Salt Company to pay a sum of 3007., which he owed them, gave the promissory note in question for 3007., and the note was indorsed by the company to the plaintiff. Upon this evidence, Lord Tenterden was of opinion that there had been, in July, 1829, no actual dissolution of the partnership; and a verdict was found for the plaintiff, for the amount of the note. A rule nisi having been obtained for a new trial, on the ground that the partnership must be taken to have been actually dissolved in April, 1829, when Sansom became the purchaser of the plant, utensils, and fixtures on the alum works,

Sir James Scarlett and Hoggins now shewed cause. Sansom had prima facie an authority to bind his partner by bills of exchange and promissory notes, and that authority continued in July 1829, unless the partnership was previously put an end to. The submission to Price cannot operate as a dissolution. It was a proceeding preparatory to it, but it clearly was not intended that the relation of partnership should then cease, for Price was to determine concerning the time and mode of dissolving it. He never did so determine before July *1829, and this partnership then continued, notwithstanding any transaction as to the plant and fixtures.

[*174

Bompas, Serj. and Ball, contrà. The authority of one partner to bind another by his promissory note, is implied from the relation of partnership, and ceases as soon as the partnership is determined, unless such party has held himself out as a partner to the world, or to a third person, and thereby induced others to give credit on the faith of such partnership. Here, Evans never so held himself out, but was a mere dormant partner. The only question, therefore, is whether the partnership, as between Evans and Sansom, was dissolved? No formal agreement is necessary to effect a dissolution; any writing, words, or conduct, from which a clear intention to dissolve the relation can be collected, is sufficient. Conceding that the agreement of reference did not amount to an actual dissolution, but was preparatory to it; in April, 1829 it was agreed that

the referee should declare which of the two was to be the purchaser of the plant, fixtures, &c., and that this person should be entitled to the possession of the goods purchased. Price declared Sansom to be the purchaser, and he took to the stock in trade, and became the sole proprietor. After that time the partnership was at an end, and Sansom could have no authority to bind Evans by his promissory note.

DENMAN, C. J. I am of opinion that the rule for a new trial must be made absolute in this case, because Evans, at the time when the note was given, had ceased to be a partner with Sansom in the alum business. In January, 1829, it was agreed that all matters concerning the mode of winding up the affairs of the *partnership, and the manner and time of dissolving it, should be *175] submitted to a referee. It was afterwards agreed that the plant, utensils, and fixtures on the alum works, were to be declared by the referee to belong to him who should be the highest bidder, and in April, 1829, Sansom was declared to be the highest bidder, and became the purchaser, and the plant, utensils, and fixtures, were delivered up to him. Evans having, then, parted with all his interest in the works from which the profits of the business (if any) were to arise, ceased to have any right to participate in such profits; and since a partnership, as between parties, results from the agreement to share in profits, it ceases as soon as such right is determined. This note, then, being given after Sansom had become the sole proprietor, and after the implied authority, resulting from the relation of partnership, was at an end, could not bind Evans.

PARKE, J. The rule for a new trial must be made absolute. The objection to the plaintiff's recovering against Evans is, that in July, 1829, Sansom was incompetent to bind Evans. It must be taken upon the evidence(a) that the partnership was to continue for an indefinite period (there being no proof to the contrary), and then either party might, at any time, have put an end to the partnership by a simple notice to his copartner, Peacock v. Peacock, 16 Ves. 49, Featherstonhaugh v. Fenwick, 17 Ves. 298, Nerot v. Burnand, 4 Russ. 260; à fortiori by a mutual agreement. Then the question is, was the authority of Sansom to bind Evans (which is implied by law from the relation of partnership) *176] was agreed between them, that the settlement of the accounts of the

determined in July, when the note was given? In *January, 1829, it

partnership, and all questions concerning their respective liabilities in the partnership transactions, and concerning the mode of winding up the affairs, and the mode and time of dissolving the partnership, should be referred to an arbitrator. The expression dissolving the partnership is ambiguous. It may either import the dissolution of the joint tenancy in the goods belonging to the firm, and the division of the partnership effects, or a putting an end to their future dealings, and the mutual authority of one party to bind the other by future contracts, or both. If the first be the true import of the words, and the intention was by them to provide that the arbitrator was to decide when and how the partnership effects were to be divided, it may be inferred from the other terms of the agreement, which are those generally used on a complete dissolution of partnership, that the power of entering into future contracts had already been put an end to. But, assuming that not to be so, and that the arbitrator was to determine not merely when and how the effects were to be divided, but when that mutual authority was to be put an end to, we must then look to the subsequent conduct of Evans and Sansom, to see whether they intended that the one should have a right to bind the other by future contracts so late as July, 1829. In April, 1829, it had been arranged between them, that the one who made the highest offer for the plant, utensils, and fixtures, was to have them, and be put into possession. Sansom, having been the highest bidder, took possession of them in the same month. Now, after that, it never could have been in the contemplation of the parties that the one should bind the other by future

(a) The only proof of partnership was by declarations of Evans to that effect.

[*177

contracts. When that had been done, there can be no question but that, as between Sansom and Evans, the right to participate in the profits arising from the plant, utensils, and fixtures (if any had been made), ceased, and consequently the mutual power to bind each other by contracts within the scope of their former partnership dealings, ceased also, and that Sansom had no authority afterwards to bind Evans by any future contract. It is to be borne

in mind that Evans, who never held himself out to the plaintiff as a partner, could be liable only by reason of the authority which Sansom really possessed, and unless that authority continued to July, 1829, he was not liable at all. But if it was not determined in January, it certainly had ceased in April of that year.

TAUNTON, J. I am of the same opinion; and for the same reasons. Evans was a dormant partner with Sansom. The authority of the latter, therefore, to bind the former, ceased as soon as the partnership was at an end; which, at the latest, was in April. Price, to whom it was referred to settle the time and mode of dissolving the partnership, at that time declared Sansom to be the purchaser of the partnership effects, in consequence of the tender made by him. Evans then sold his interest in the partnership concern to Sansom, and the latter assented to such sale; and he afterwards conducted the business exclusively for his own benefit. After the sale, there was only one person concerned in the business, and the authority of Sansom to bind Evans ceased.

PATTESON, J. I am of the same opinion. A dormant partner may retire from a firm, without giving notice to the world. The question is, whether Evans did retire from the partnership before July, 1829? It is quite *clear on the facts of the case, that he retired from it in April, 1829; [*178 for, from that time, Sansom only was entitled to the works, and to all the profits to be derived from them. The authority, therefore, which Sansom previously had to bind Evans, was countermanded in April. Rule absolute.

The Dock Company of KINGSTON-UPON-HULL v. PRIESTLEY. Nov. 13.

By statute 14 G. 3, c. 56, s. 42, the following tonnage duties were imposed on every ship or vessel (except those in the king's service,) coming into or going out of the harbour, basin, or docks of the port of Kingston-upon-Hull, or loading or unloading there. 1. For every ship coming to or going between the said port and any port to the northward of Yarmouth or southward of Holy Island, 2d. per ton. 2. For every ship coming to or going between the said port and any port or place between the North Foreland and Shetland, on the east side of England, except as above, 3d. 3. For every ship trading between the said port and any other port or place in Great Britain not before described, 6d. The duties to be paid on the ship's entry inwards, or clearance or discharge outwards; or, if there were no entry, then to be paid at the custom-house at any time before the vessel proceeded:

Held, that the first clause related only to ports on the east side of England, between the places there named; that it extended to the port of Goole, though situate twenty-five miles inland from Hull, on the river Ouse; and, therefore, that vessels taking all, or part of their cargoes at Goole and going to Hull, or vice versa, were liable to the duty of 2d.; and this, though they did not enter or clear at the custom-house: Held also, that the first clause did not apply to vessels loading at Leeds or other places, not ports, situated above Hull, and going directly thither; that the third clause (if those places were contemplated by it) did not refer to them with the precision necessary for imposing a duty and, (Parke, J., dubitante,) that the vessels so loading at Leeds did not become liable to duty by merely passing through the entrance basin of the Goole docks, without taking in goods or making any stay there.

DEBT for tonnage dues. At the trial before Vaughan, B., at the Yorkshire Summer assizes, 1831, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following special case.

The defendant is clerk to the Aire and Calder Navigation Company, who are