Q. B.]

pointed out by the Foundling Hospital Act (13 Geo. 2, c. xxix.)

22. The appellant further contended that in every case the entry as it at present stands is improper and insufficient, and that if the actual gross and rateable value is entered at all, it ought to be accompanied with such special note or instructions as would prevent the parish officers from making the rates referred to in sect. 45 of the Metropolis Valuation Act 1869, upon such actual value, and would direct them to make the rates on the value ascertained, as provided by 13 Geo. 2, c. xxix.

23. The respondents contended that the true gross and rateable value of the said property, as defined by the Valuation Metropolis Act 1869, should be inserted in the valuation list, leaving the parish officers when making the poor rate to make it on this exceptional principle of valuation referred to in the statute of Geo. 2, and when making the general rate under sect. 161 of 18 & 19 Vict., c. 120, for maintaining, paving, and repairing, &c. the roads, &c., and for the payment of the interest on the bond debts of the extinct paving trust to make such general rate on the exceptional principle of valuation referred to in the statute of Geo. 3.

24. The respondents further contended that, at any rate, the sum of 2751. gross, and 2341. net, ought not alone to appear in the list but that some special entry ought to be made in the valuation list, with reference to the appellants' property, so as to enable the parish officers properly to make the rates referred to in sect. 15 of the Metropolitan Valuation Act 1869.

25. The court of general assessment sessions confirmed the valuation list in order that the opinion of the court might be taken on the beforementioned questions of law.

26. The Acts referred to herein are to be taken to form part of this case.

27. The questions for the opinion of the court are first, whether the true gross and rateable value of the appellants' property now in their occupation, as defined by the Valuation Metropolis Act 1869, should be inserted in the valuation list; or, secondly, whether the gross and rateable value of such property for the purpose of such list, should be ascertained as pointed out by the Foundling Hospital Paving Act (34 Geo. 3, c. xcvii); or, thirdly, whether the gross and rateable value of such property for the purposes of such list should be ascertained in the manner pointed out by the Foundling Hospital Act (13 Geo. 2, c. xxix.); fourthly, whether the valuation list should contain a special entry showing, in addition to the true gross and rateable value of such property, the gross and rateable value ascertained under the said Acts of Geo. 2 and 3, or either and which of them, and whether it should contain any and what instructions as to the making or rates on the said values respectively.

28. If the court should be of opinion that the said property ought not to be charged and assessed in the valuation list in either of such before mentioned ways, then the court to decide in what way it should be valued and assessed in such lists.

29. The case to go back to the general assessment sessions to alter the valuation list in accordance with the judgment of the court.

Poland, for the respondents, showed cause.-It was the duty of the general assessment committee to enter on the valuation list the true gross and

[Q. B.

66

rateable value as they have done. The object of 32 & 33 Vict., c. 67, was to produce uniformity of assessment, rates having formerly been made on the annual value as stated in the Parochial Assessment Act, the mode of arriving at the annual value being different in different parishes. The Union Assessment Committee Act (25 & 26 Vict. c. 103), ss. 17-2', is by sects. 6 and 7 of the 32 & 33 Vict. c. 67, to be read with this latter part, and the assessment is to be made accordingly. The valuation list so made is by sect. 45, to be conclusive evidence of the gross value and of the rateable value of the several hereditaments included therein, and of the fact that all hereditaments required to be inserted therein have been so inserted," for the purposes of the various rates and taxes mentioned therein. Sect. 54 provides for exceptional principles of valuation to be applied in any particular case, enacting that 'nothing contained in this Act, or the Act incorporated herewith, shall affect any exemption or deduction from, or allowance out of any rate or tax whatever, or any privilege of, or provision for, being rated or taxed, on any exceptional principle of valuation." The assessment committee are bound to insert in the valuation list the true gross and true rateable value: it is not for them to apply or make allowance for the exceptional principles of valuation saved by sect. 54; that is the business of the particular local authority in each case. All the assessment committee have to do, is to see that the true gross and true rateable value of all the property in the metropolis are contained in the valuation list. It is submitted that they were right in doing this, and refusing to take account of the exceptional principle of valuation contained in the Foundling Hospital Act (32 Geo. 2, c. xxix).

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Millward, Q.C.and Fullarton for the appellants.The assessment committee, in making the valuation list, should have taken into account the exceptional principle of valuation affecting the property of the appellants by virtue of the Foundling Hospital Act (34 Geo. 2, c. xxix.), all exceptional principles of valuation being expressly saved by sect. 54 of 32 & 33 Vict., c. 67. No provision is made for any appeal from the determination of the assessment committee as to the rateable value of property, and by sect. 45, the assessment is to be conclusive for five years as to all taxes named in that section. [COCKBURN, C.J. But sect. 54 preserves you the benefit of the exceptional principle of valuation contained in your Act.] The committee should have made allowance for that. [COCKBURN, C.J.— Are you not complaining before you are hurt? When a rate is made affecting you, you will be entitled to the benefit of the privilege contained in your Act; but the assessment committee are not imposing a rate, they merely prepare a statement of value.] At any rate there ought to be a memorandum attached to the entry in the valuation list, pointing out that the appellants' property is entitled to the privilege conferred by the Foundling Hospital Act. [COCKBURN C.J.-What power have we to order the committee to do that? And what would such a direction amount to, but simply calling their attention to the 54th section of the Act. We can only say that the valuation list must be made according to the Act of Parliament.]

COCKBURN, C.J.-It is unnecessary to add anything to what we have said in the course of the argument. This is neither a rate nor an assess

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ment, but only a valuation with a view to an assessment, and the appeal must be dismissed. MELLOR and HANNEN, J.J., concurred.

Appeal dismissed. Attorneys: J. T. Simpson; W. T. Cooper.

Saturday, Nov. 18, 1871.

EASTON (app.) v. RICHMOND HIGHWAY BOARD (resps.) Highway Act 1864 (27 & 28 Vict. c. 101) s. 51— Conviction for encroaching upon highway-Side of carriage way not dedicated to the public. By sect. 51 of the Highway Act 1864, a penalty is provided upon summary conviction, "if any person shall encroach by making or causing to be made, any building, or pit, or hedge, ditch, or other fence,. on the side or sides of any carriage way or cartway, notwithstanding that the whole space of 15 feet from the centre of such carriage way or cartway has not been maintained with stones or other materials used in forming highways."

Upon a case stated by magistrates, who had convicted the owner of the neighbouring soil of encroaching upon a highway by building a wall within 15 feet of its centre, but upon part of a green which the carriage way crossed, and which had never been dedicated to the public. Held that this section did not relate to any ground which was not part of the highway, and that the conviction was wrong.

THIS was a case stated by two of her Majesty's justices of the peace in and for the division of Gilling West in the North Riding of the county of York, under the statute 20 & 21 Vict. c. 43, for the purpose of obtaining the opinion of the court on questions of law which arose as hereinafter stated.

At a petty sessions holden at Richmond in and for the division of Gilling West, in the North Riding of the county of York on the 3rd Sept. 1870, an information was preferred by John Hodgson (hereinafter called the respondent), the surveyor of the Richmond Highway District Board, in the North Riding of Yorkshire, against John Easton (hereinafter called the appellant), for that he, the said appellant, on or before the 1st Aug. 1870, at West Layton, in the parish of Hatton Long Villiers, unlawfully did encroach on the side of a certain carriage way there situate, called the East Layton Road, within 15 feet of the centre thereof, by making, or causing to be made, a certain building, to wit, a stone wall thereon, contrary to the form of the statutes in such case made and provided : and was heard and determined, the parties respectively being then present, and upon such hearing the appellant was duly convicted of the said offence, and the said appellant was adjudged for his said offence to forfeit and pay the sum of twenty shillings, to be paid and applied according to law, and also to pay unto the said respondent the sum of four shillings and sixpence for his costs in this behalf.

And whereas the appellant, being dissatisfied with this determination, upon the hearing of the said information, as being erroneous in point of law, hath, pursuant to sect. 2 of the said statute (20 & 21 Vict. c. 43), duly applied to the justices in writing to state and sign a case setting forth the facts and grounds of such determination as aforesaid for the opinion of this court, and hath duly entered into a recognisance as required by the said statute in that behalf.

[Q. B.

Now, therefore, the said justices, in compliance with the said application, and the provision of the said statute, and by consent of the parties, hereby stated and signed the following case.

Upon the hearing of the said information it was admitted on the part of the appellant, and found as facts:

That the carriage way mentioned in the information is a highway repairable by the township of West Layton, and the portion of the highway on which the alleged encroachment was made. runs across the village green of West Layton aforesaid for the distance of 200 yards or thereabouts, into another highway, leading from the said village of West Layton to the village of Caldwill.

That the appellant is lord of the manor of West Layton, and the whole of the village, the green, and the property around belongs to him.

That before the alleged encroachment, the portion of the highway which crosses the said village green was wholly unenclosed, and the width of the metalled road crossing the green was 8ft.; the grass came up to the metalled road, and there was no difference between the grass adjoining the metalled road and the rest of the green.

That on the south side of the road, crossing the green for the greatest part thereof, the ground sloped gradually from the metalled road to the extent of from 1ft. to 2ft., or an average of 11⁄2ft. all the way down the village green, and on the north side there was a hollow at about 3ft. distance from the metalled road, but neither the slope nor the hollow were of such a character as to prevent carriages or other vehicles passing along or crossing the same, if it were necessary to do so for the purpose of avoiding any carriage or other vehicle travelling in a contrary direction, although for a few feet in two or three places rather more than ordinary care would require to be taken to avoid any danger of overturning. On the east side of the village green, before entering on the green, the road is for a short distance enclosed between hedges, and the width of the enclosed part, including the waste on the side of the road, is 12ft. from hedge to hedge. The road is very little used.

That the appellant had lately enclosed the road across the said village green, for nearly the whole length thereof by building a wall on each side thereof. The said wall is built at the foot of the said slope on the south side of the road, and in the said hollow on the north side thereof, and upon both the north and south side the wall is built upon the green, and about 4ft. from the metalled road. The width from wall to wall is 16ft.

That the said village green had generally been depastured by the tenants of the adjoining farms, and the public have always been accustomed to ride and walk or take carts across the green where sufficiently level, without interruption, but they have not exercised any greater or other right of passage over the grass adjoining the metalled road than they have over the rest of the said green, which is about 5 or 6 acres in extent, and extends in width from 80 or 100 yards on each side of the road. It was alleged by the respondents that if two carts loaded with straw or hay met upon the road, one or other would have to go on the grass, although there was no evidence that two loaded carts had ever been seen to meet. It was admitted that in such event one or other might have to go on to the grass.

It was contended by the appellant that there

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was nothing in the Highway Acts to prevent his building on his own land within 15ft. of the centre of the highway, providing that he did not build upon the highway or boundaries thereof, and it was also contended that as the walls were built on the village green, and at the distance from the metalled road above stated, but leaving no more than a width of 16ft. between wall and wall, and that as the part of the green on which the walls were built (though open ground) had never, as the appellant contended, been dedicated to the public as a highway to any greater extent than the whole green had been dedicated, the walls were not built upon the highway or sides thereof, so as be an encroachment within the meaning of the Acts, and therefore that the appellant ought not to have been convicted.

The justices, however, being of opinion that the walls had been built upon the sides of the highway, leaving only a width of 16ft. between wall and wall, and that the appellant had thereby encroached on the said highway within the meaning of the 27 & 28 Vict. c. 101, s. 51; and being also of opinion that by reason of such encroachment the said highway had been reduced in width to less than 30ft. between the fences on each side thereof, within the meaning of the said section, gave their determination against the appellant in the manner before stated.

The question for the opinion of the court is, whether, upon the facts above stated, the appellant was justified in building the walls in question, only leaving a width of 16ft. between wall and wall, or was bound to leave a space or roadway of the width of 30ft.

If the court should be of opinion that the appellant was not justified in building the walls as stated in this case, the conviction is to stand, but if the court should be of opinion otherwise, the information is to be dismissed.

Field, Q. C. (with him Herschell) argued for the appellant. The section under which the appellant was convicted is the 51st of the Highway Act 1864 (27 & 28 Vict. c. 101.) "From and after the passing of this Act, if any person shall encroach by making or causing to be made any building or pit or hedge, ditch or other fence, or by placing any dung, compost, or other materials for dressing land, or any rubbish, on the side or sides of any carriage way or cartway, except for the purpose of improving the road, and by order of the highway board, or where there is no highway board, of the surveyor, he shall be subject on conviction for every such offence to any sum not exceeding 40s., notwithstanding that the whole space of 15ft. from the centre of such carriage way or cartway has not been maintained with stones or other materials used in forming highways: and it shall be lawful for the justices assembled at petty sessions, upon proof to them made upon oath, to levy the expenses of taking down such building, hedge, or fence, or filling up such ditch or pit, and removing such dung, compost, materials, or rubbish, as aforesaid, or restoring the injury caused by the removal of such soil or turf, upon the person offending. Provided always that where any carriage way or cartway is fenced on both sides, no encroachment as aforesaid shall be allowed whereby such carriage way or cartway shall be reduced in width to less than 30ft. between the fences on each side." To understand the effect of this provision, it is necessary to consider the previous legislation on the subject, and

66

[Q. B.

the authorities upon it. The case of Lowen v. Kaye (4 B. & C. 3) was decided upon 13 Geo. 3, c. 78, ss. 6 and 64, by which a person was liable to a penalty if he "shall encroach by making any hedge, ditch, or fence on any highway;" it was held that upon an action for trespass against the surveyor for pulling down a fence which plaintiff had erected, so that the road was only 24ft. wide, a proper question for the jury was whether the fence was erected on the highway, or on the plaintiff's soil. By 5 & 6 Will. 4, c. 50 (The Highway Act 1835), s. 63, “where, in this Act, any matter or thing is directed or forbidden to be done within a certain distance of the centre of a highway, that portion of ground shall be deemed and taken to be the highway which has been maintained by the surveyor as highway and repaired with stones or other materials used in forming highways for the six months immediately preceding." And by sect. 69 a penalty is imposed, "if any person shall encroach by making or causing to be made any building, hedge, ditch, or other fence, on any carriage way or cartway within the distance of loft. from the centre thereof." Under this Act, it was held that the erection of a building within 15ft. of the centre of a carriage way which has been repaired by the surveyor for the six months preceding, but not on any part of the highway which has been lately used for passage, is not an encroachment of which justices can take summary cognisance: (Chapman v. Robinson, 1 E. & E. 25.) The encroachment," Wightman J. said in his judgment, "must be within 15ft. of the centre of the highway, and also upon that which is highway." Another authority upon this 69th section is that of Maule J., who summed up, in an action against a surveyor for pulling down a fence built by the plaintiff by which the highway was rendered only 22ft. wide: "In order that a fence put up by a party should come within the provisions of the statute that has been cited, two things must concur, the one, that it must be within 15ft. of the centre of the road, the other, that it must be on the road. If an encroachment was made by putting up a fence at the edge of a road as wide as Portland-place, that would not be within this enactment, because it would not be within 15ft. of the centre of the road. So if the road was under 30ft. wide, and the encroachment was at the side of it, but not on the road, it would on that ground not be within the 69th section of the Highway Act. Here we find that there is a road running along this line, but that the two places inclosed never were parts of that road, as no carriage ever did or could go along the steep bank at The Pound, or over the rough uneven ground at Nichols; and if these places at which the fences were put up have never either of them been used by the public as a part of the road, the surveyor had no right to pull down the fences, because they were within 15ft. of the centre of the road (Evans v. Oakley Car. & Kir. 125.) Now, under the last Act of 1864, there is certainly a change in the language, but the question is whether the change is so extensive as to meet this case. There must be an encroachment, which, according to Jacob's Law Dictionary, "Signifies an unlawful gaining upon the right or possession of another man." There must, therefore, be some injury to the rights of the public, which the building of these walls cannot be, unless this grass had been dedicated to the public. According to the case there has been no such dedication. [BLACK

:

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BURN, J.-Your argument is, that although sect. 51 of the Act of 1864 was passed to overrule Chapman v. Robinson, it was not intended to overrule Evans v. Oakley? Yes.

a

Manisty, Q.C. (with him Cave) for respondents.— In some cases it may be difficult to decide what is the side of a road, but it is clear that in this section the side must mean something different from the carriage way or cartway itself. In Grove v. West (7 Taunt. 39), cited in the note to Evans v. Oakley, Gibbs, C.J, said: "Prima facie the presumption is, that a strip of land lying between a highway and the adjoining close belongs to the owner of the close, as the presumption also is that the highway itself ad medium filum vice does. But the presumption is to be confined to that extent; for if the narrow strip be contiguous to, or communicate with open commons or larger portions of land, the presumption is either done away or considerably narrowed; for the evidence of ownership, which applies to the larger portions, applies also to the narrow strip which communicates with them." It must be a question of fact in every case how far a strip by the road is the side of the road, and here in effect the justices have found that the public had right to use the land enclosed by the appellant. [COCKBURN, C.J.—The words of the case do not mean that the whole green is a highway, but they are express that the public have not exercised any greater or other right of passage over the grass adjoining the metalled road than they have over the rest of the green. MELLOR, J.-The justices do not find that these strips were dedicated to the public.] They find that it was used by the public. [MELLOR, J.-Yes; but they tell us the kind of user, in order that we may judge of its effect.] Taking the case as it is, clearly this is not like Evans v. Oakley, where the strip by the side of the highway could not be used as a road. Lord Denman said, in Elwood v. Bullen (6Q. B. 409): "Where a highway passes through an inclosed country, it is not the formed road merely (whether of pavement, gravel, or other material), but the whole space from fence to fence which is the highway; and an obstruction in any part is equally the subject of an indictment. The extent of a highway, where it passes over a common, is frequently still more indefinite to the right and left of what may be the ordinary passage.

Even if your Lordships hold that the side of a carriage way, to be within the Act must be dedicated to the public, I would ask that the case should be sent back to the magis trates, in order that they may find the facts on that point. [BLACKBURN, J.-I see nothing in the case to show us that the public had any right to go over the grass upon which the walls are built.]

COCKBURN, C.J.-In this case I am of opinion that the conviction was wrong, and that there was no encroachment on the appellant's part within the meaning of the 51st section of the Act of 1864. It is suggested by Mr. Field that this provision was not intended in any way to interfere with or limit the ruling of Maule, J. in Evans v. Oakley, and I think that its object certainly was rather to meet the circumstances of Chapman v. Robinson, and to set aside that decision so far as it was thereby held that this erection of a building by the side of a highway was not an encroachment, unless the place upon which it was built had been lately used for passage. It seems to me that the recent enactment on the subject was merely meant

[Q. B.

to meet the case of a highway wider than the metalled road. And the true construction of the statute is, not that it should include the case of building upon rough or waste land by the side of the road, which could not possibly be used by the public, but it is intended for the case of building upon t' at part of a highway which is not metalled or gravelled, but which has been dedicated to the public. This is reasonable; for the rough ground by the side of the road might be such as could never have been part of the highway, and it would be a confiscation of the owner's property to hold that he could not build upon it. But it would be reasonable that, whatever was part of the highway, though not gravelled, should be protected and preserved for the public, and this would be no interference with the rights of the owner, who has, indeed, abandoned all his rights to the strips by the side of the road when he dedicated them to the public. There could be no hardship or injustice in this; and by putting such a construction on the Act, the fair and proper objects of the Legislature would be attained, and all rights and interests would be reconciled and regarded. Applying this principle to the present case, the land by the side of the road, which formed no part of the highway, was not within the enactment, and therefore the magistrates were wrong in convicting the appellant for an unlawful encroachment on the highway, if, as we understand the case, the pieces of grass between the new walls and the metalled road had never been dedicated to the public.

BLACKBURN, J.—I also think that the magistrates have here mistaken the meaning of this Act, but I consider that theirs is a very natural mistake to fall into. When a highway exists of which a part only is metalled road, it is generally a question of fact how much between the fences is included in the highway. Prima facie, the whole of it is highway, but this may be rebutted by evidence, and the facts of this case seem to show that none but the metalled part of this green was highway. Now at common law encroachments on the highway, whether it was gravelled or not, were unlawful and indictable. The early statutes, giving magis trates summary jurisdiction (13 Geo. 3. c. 78 and 5 & 6 Will. 4, c. 50) were restricted to the metalled or gravelled part. The two cases cited (Chapman v. Robinson and Evans v. Oakley) were clearly right. The recent Act simply adopted the principal of the common law, and related to the whole highway, gravelled or not. But it did not go beyond the boundaries of the highway, and therefore the magistrates in this case were wrong. The Legislature had a right to take away people's rights without compensation, but it was not to be presumed that they had done so without clear and express words to that effect. To have taken any land which was no part of the highway wold have had this effect, and that construction did not appear to be required to carry out the object of the Act. The phrase, on the side or sides of the highway," therefore, was to be confined to those parts which belonged to the highway. The conviction, therefore, will be quashed.

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MELLOR, J.-I am of the same opinion. I think that it was not the intention of the Legislature to take away any person's property. Therefore, if on the sides of the carriage way there were any pieces of land not included in the highway, they were protected from the penalty of encroachment; but if they were pieces of land by the sides of the

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highway, and forming part of that which had been dedicated to the public, the owner of the neighbouring soil had no right to build upon them. Here I agree that there is no evidence of dedication to the public, and I think the magistrates have misinterpreted the Act. Judgment for appellant: Attorneys: Pattison, Wigg, and Co.; and J. L. Tomlin, for J. R. Tomlin, Richmond, Yorkshire.

GAINSBOROUGH UNION (apps.) v. WELCH (resp.). The Parochial Assessment Act (6 & 7 Will. 4, c. 96), to command rent8. 1-Expenses necessary Drainage rate under Local Act-Taxes payable by landlord.

By the Everton Drainage Act 1860 the owners and proprietors of land in Nottinghamshire were charged with embankment and drainage works, without which the annual value of the neighbouring lands would be considerably diminished. The rutes so charged were made payable by the occupiers, who were authorised to deduct the a e amount from their rent: Held, that the average annual cost of the works ought to be deducted from the occupier's rent, in order to estimate the net annual value under the Parochial Assessment Act 1836.

Ox appeal from the decision of justices in special sessions in the matter of a poor rate, the Court of Quarter Sessions confirmed the decision of the said justices, subject to the following case:

The respondent is a farmer and occupier of certain lands in the parish of Misterton, in the poor law union of Gainsborough, and the Duke of Portland is the owner and proprietor of the said lands.

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Under the provisions of a local Act (23 & 24 Vict. c. cliv.), called the Everton, &c., Drainage Act 1860, which is to be taken to form part of this case, and which was An Act to Consolidate into one Act and to Amend, Extend, and Enlarge the Powers and Provisions of the several Acts for Embanking and Draining certain Low Lands and Grounds in the Parishes or Townships of Everton, Scaftworth, Gringley-on-the-Hill, Misterton, and Walkeringham, in the county of Nottingham, and to make further and better Provision for such Embankment and Drainage," the said lands in the parish of Misterton, so occupied by the respondent as aforesaid, became liable to be rated, and have been rated, under the 58th section of the said Act, in each year since the passing of the said Act, for the purposes for which the said Act was passed, in the sum of 291. 58., and a similar rate will be required in future years.

The Duke of Portland, the owner and proprietor of the said lands as aforesaid, has duly paid the said sum when required, and the same has not been paid by the respondent at any time.

The respondent was rated in the poor rate appealed against, which was made in accordance with the valuation list then in force for the parish of Misterton, as under:

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spent in each year in maintaining drainage works. No portion of it is expended in constructing new works, or in paying back money borrowed in former years, or in interest on such moneys.

Without such drainage rate the drainage works by which the land occupied by the respondent is drained could not be maintained.

Without such drainage works as those just mentioned, the land occupied by the respondent would be under water at certain seasons of the year, and could not be maintained in its present state, and the annual value thereof would be considerably diminished.

In assessing the respondent to the above poor rate, no deduction or allowance whatever was made for or in respect of the said drainage rate of 291. 58. in arriving at the net rateable value. In other respects the respondent admits that the assessment is proper and just. But the respondent appealed against the rate to the justices in special sessions for the petty sessional division of East Retford on the ground that he was entitled to deduct the said sum, and the said justices decided that he was so entitled.

The present appellants then appealed to the Court of Quarter Sessions, upon the ground that no deduction whatever ought to be made for or in respect of the said drainage rate, and the appeal was heard at the adjourned Quarter Sessions for the county of Nottingham, held at Newark, on the 24th day of Oct., 1870, before John Evelyn Denison, Esq., chairman, and a bench of magistrates. The said Court of Quarter Sessions, under the circumstances above mentioned, thought that the expenses of maintaining such drainage works were expenses necessary to maintain the said land in a state to command the rent at which the said land was assessed in the said rate, and gave judgment for the respondent; but granted this case for the Court of Queen's Bench, and ordered that the costs of the appeal and of this case should abide the event.

The question for the opinion of this court is, whether the said drainage rate of 291. 58. ought to be deducted from the gross estimated rental of the said lands.

If the court should be of opinion that the respondent is entitled to the said deduction, the order of sessions to be confirmed.

If the court should be of opinion that the respondent is not entitled to the said deduction, the order of sessions to be quashed.

Cave (with him Mellor) for respondent. The question in this case arises under the Parochial Assessment Act 1836 (6 & 7 Will 4, c. 96), s. 1, which enacts that " no rate for the relief of the poor in England and Wales shall be allowed by any justices, or be of any force, which shall not be made upon an estimate of the net annual value of the several hereditaments 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 tenant's 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." By the 62nd section of the local Act, "The tenant or occupier of any lands and grounds embanked and drained, or intended to be embanked and drained by virtue of this Act, is hereby authorised and required to pay such sum and sums