1804. The KING againft Company. Now taxed for that proportion of it accruing along the line which is taxable, but that it fhall not be taxed for that proportion which accrued along the line which is exempted. The LEEDS here a rate has been made taxing the tolls altogether, without and LIVER- diftinguishing between the different parts which are exempted POOL Canal or not exempted: that cannot be fupported. We cannot apportion it; those who make the rate fhould apportion it. The rate, as it is, cannot be fupported. The word exempt may be taken to mean precluded from being chargeable. The meaning of the clause of exemption was, that the land or space occupied by the canal fhould be liable to be taxed as it was before, that is as the land was before: but the tolls were not rated before, for they had no existence; and therefore are exempted. [332] GROSE J. In order to tell whether the tolls are rateable or not, it must be feen from whence they arofe. One line of the navigation is exempted from being rated in refpect of its tolls, and another not. Then fuch proportion of the tolls as have accrued along the exempted line is not liable to be rated let it be due or received where it will; otherwife the exemption which the legislature have holden out to the company would be a mere trick and may become nugatory. LAWRENCE J. As to the exemption itself, the object of the clause was to take care that when the Company were engaging in a hazardous undertaking which was confidered to be beneficial to the public, they should not be liable to any other taxes than those which the land they made ufe of in their undertaking was before liable to. Now the land was not before liable to be rated for toll; and therefore the proprietors fhall not be liable now to a rate on tolls in refpect of it when converted into a canal. But this does not go to exempt the land from paying what it did before. Upon the other point I fully accede to what has been faid. The toll must be apportioned pro ratâ itineris for fo much of it as accrued on the unexempted line, and that proportion only is liable to be rated where it becomes due. LE BLANC J. I am of the fame opinion. We cannot adopt any other conftruction without totally defeating the object of the legislature in giving the exemption. And this may be done without difficulty. The land will be rated in the fame manner as it was before the act. The tolls will be rated where they 3 become become due; but in calculating the quantum of toll which is the subject of the rate, allowance must be made for so much of the toll as accrued in refpect of the line exempted. For instance, if two-thirds of the line are exempted, then tolls which have come along the whole line to Habergham Eaves, will only be liable to be rated in the proportion of one third. So if the goods have been carried 15 miles, five miles of which are not exempt, they must be rated only for thofe five miles; and fo in proportion. It will be eafy therefore in all cafes to calculate the proportion of tolls which are rateable, according to the number of miles which the goods have been carried along the exempted and unexempted lines of the canal. Rate on the tolls quafhed. 1804. The KING against The LEDS and LIVER POOL Canal [333] The KING against The Inhabitants of DENBIGH. TWO juftices removed Robert Hughes, his wife, and children, by name, from the parish of Denbigh to the parish of Heullan. The Seffions on appeal quafhed the order, fubject to the opinion of this Court on the following cafe. Wednesday, One may gain a fettlement by renting a tenement of above 10%. ayear in the parifh where though fuch he refided, refidence were in a turnpikevant to the boufe, as fercolle&tor for whom he re ceived the The paupers being legally fettled in Denbigh, on the 14th of May 1802 Robert Hughes agreed with the toll-taker in Heullan to go and receive the tolls in the turnpike house in Heullan, as the fervant and for the ufe of the toll-taker; for which he (the pauper) was to be paid 3s. 6d. per week. The pauper went there accordingly; and in about a fortnight afterwards, while he was at the turnpike gate houfe, took from one Evans a field. in Heullan at the rent of 12. a-year, and gave him 6d. earnest. The pauper continued in poffeffion of that field for two or three tolls; for the months, and refided day and night during that time with one of general turnhis children at the turnpike gate house. In the courfe of two pike act 13 or three months after the pauper had taken the said field, Evans Geo. 3 € 84. coming by the turnpike gate told the pauper that he was uneafy fays that "no J. 56 only on account of the rent, and asked the pauper to give him fome gatekeeper fecurity, to which the pauper answered that he could not give him any fecurity, but had no objection to give up the field, and and refining in he did then give it up accordingly. The pauper took the field the toll boufe fhall thereby gain a settlement, i. e. by such taking of the toll-houfe or renting the tolls. for · VOL. V. S orperfon rent ing the tolls 1804. The KING against The Inhabi tants of DENS GH. [334] [335] for the purpofe of getting hay and grafs to keep his mare, but he never reaped any benefit from the field, nor did he turn his mare into it, becaufe the hay was growing. The pauper continued at the turnpike gate houfe for 12 months after he had given up the field, receiving for part of that time 4s. 6d. and latterly 5. per week from the taker of the turnpike gate as aforefaid. The pauper's wife and three of his children lived during that time in a houfe in Denbigh, for which the pauper paid 3 35. per annum; but they fometimes flept with him at the turnpike. The turnpike gate houfe is the property of the commiffioners of the turnpike road, but is always fet with the tolls to the toll-taker, and was fo fet while the pauper lived there and received the tolls there for fuch toll-taker as aforefaid. The Seffions was of opinion that the pauper had bonâ fide holden lands to the value of 1cl. a-year in the parish of Heullan for above 40 days, and lived during fuch holding at the said turnpike gate house, as before stated; but reverfed the order of removal in this cafe on the ground of the act of 13 Geo. 3. c. 84. f. 56. which enacts, "That no gate-keeper of any turnpike"road, or perfon renting the tolls thereof, and refiding in any "toll-houfe belonging to the faid truft, fhall be removeable from "fuch toll-houfe, &c. unlefs he fhall become actually charge"able to the parith, &c. in which fuch toll-house is fituate. "And that no fuch gate-keeper, or perfon renting fuch tolls, "and refiding in fuch toll-houfe as aforefaid, fhall thereby gain "a fettlement in any parith or place whatfoever; and that no "tolls to be taken at any gate erected or to be erected by the "trustees of any turnpike road, nor any toll-house erected or to be erected for the purpofe of colle&ting the fame, nor any "perfon in refpe of fuch tolls or toll-houfe, fhall be rated or "affeffed towards the payment of any poor's rate or any other "public or parochial levy whatsoever." Conft and Scarlett, in fupport of the order of feflions, obferved that the Legislature, by providing that no gate-keeper or renter of tolls refiding in any toll-house thould thereby gain a settlement, meant not only that the renting of the tolls fhould not gain him a fettlement, but that the refidence in the toll-boufe should not be contributable to a fettlement: now here it would be contributable to a settlement by giving him a refidence in the parish, if that would fuffice. The The Court however thought the cafe too clear for further argument; and Lord Ellenborough C. J. faid, the act only fays that a gate-keeper fhall not thereby gain a fettlement, that is, by keeping the gate or renting the tolls and refiding in the toll-houfe. But that does not prevent him from gaining a fettlement aliundè in the fame parish where the gate-houfe is fituated. This man did not gain a fettlement by renting the tolls or by keeping the gate, but by renting a clofe in the parish worth above 10l. a-year for more than 40 days, and refiding in the fame parish. He did not even rent the tolls: he was no more than a mere fervant to collect the tolls for another. Per Curiam, Order of Seffions quafhed. Erskine, Topping, and Benyon were to have argued against the order of Seffions. 1804. The KING against The Inhabi tants of DENBIGH. The KING against The Inhabitants of WAKEFIELD. of a fettle Wednesday, June 13th. TWO juftices removed Mary the wife of George Fielding, and The Seffions her five children, by name, from the township of Alverthorpe having decid with Thornes to the township of Wakefield, both townships being ed in favour within the parish of Wakefield in the county of York, and main- ment in A. by taining their own poor separately. On appeal the Seffions con- which the firmed the order of removal, fubject to the opinion of this Court pauper's fa on the following cafe. The refpondents, in fupport of the order ther was proved to of removal, proved that the appellants had at various times have been during forty years paft relieved George Fielding, the father of George Fielding, the husband of the pauper Mary, and different members of his family, fome by being taken into the appellant's workhouse, and fome in otherways during the time that they refided in the township of Stanley, and had provided coffins for and defrayed the expences of the funerals of some of the family. only evidence It was alfo proved that George Fielding, who is now 38 years to oppofe this old, the husband of the pauper Mary, and father of the other paupers, was born and has always lived in the township of Alverthorpe with Thornes. The above was the only evidence given in fupport of or against the order of removal. relieved while refident in another parish 40 years ago, and before the pauper's birth, and the being that of the pauper's own birth in B.,this Court confirmed the order of Sef fions on a cafe Gibbs and Wood in fupport of the order of Seffions. The giving relief to a pauper's family, while refident out of the township reserved. fo relieving, is good evidence of a fettlement there, especially *[ 336 ] S 2 for 1804. The KING against The Inhabi tants of for fo long a time as 40 years. This fhews that the relief was not given to them as cafual poor; for that the paupers could only have been entitled to in the parish in which they lived at the time. Then admitting that the birth of George Fielding, the husband of the pauper Mary, in Alverthorpe was, if it had stood WAKEFIELD alone, primâ facie evidence of a fettlement there; yet it was the province of the Seffions to decide upon the weight of evidence, and their conclufion muft decide the fettlement. נ£337 [ 338 ] Topping and Lambe contrà. The principal question was as to the fettlement of George Fielding the husband of the pauper Mary, and the father of the other paupers. A derivative settlement is only to be reforted to upon failure of any evidence of the party's own fettlement. Here the place of birth was primâ facie evidence of the husband's fettlement, and could not be gotten rid of by mere prefumptive evidence of his father's fettlement at an antecedent time. If indeed the husband himself had been proved to have received relief while refiding out of his township, it would have rebutted the prefumption of fettlement from the place of his birth; though the fact of receiving relief from the parish where a party refides is not even primâ facie evidence of fettlement, according to R. v. Chadderton (a). It is not ftated here when the relief was given to the father's family; it fhould have appeared at least that it was given before the pauper's husband was an adult, and was emancipated from his father's family. Lord ELLENBOROUGH C. J. The relief was given by the township of Wakefield to the father of the pauper's husband and to different members of his family, which must mean the family of the pauper's husband's father: and this while they were refiding in another township. This was evidence of the father of the pauper's husband's fettlement in Wakefield at that time: and this is flated to have been done at different times during the laft 40 years; the particular periods are not material; for no other fettlement has been established fince and all things are prefumed to continue in the fame ftate unlefs fomething be fhewn to the contrary. Then the only evidence fet up against this is that of the birth of the pauper's husband in Alverthorpe, which is no more than primâ facie evidence of a fettlement there. Then if there were evidence on both fides the Seffions were to decide on it. 7 |