1823. The KING v. The FERRY BRIDGE. by extending its operation, and embracing more rateable objects, the burthen of parochial taxation will be more equalized. I entirely concur in the truth of that observaINHABITANTS tion, and if the Legislature could have contemplated at of the time this statute was passed, that new descriptions of property would have come into existence, it is highly probable that terms more extensive than the statute contains, would have been introduced to embrace this description of property. But we are to construe the statute as we find it. The statute only applies to such property as in fact produces, or may be considered as producing, some annual profit. The subjects enumerated are lands, houses, tithes impropriate, propriations of tithes, coal mines, or saleable underwoods. It is to be observed, that when this statute was passed, saleable underwoods were much more in use than at present. At that period, underwood constituted the chief fuel of the country, and was cultivated in great abundance in the neighbourhood of towns. In more modern times, coal has been brought into use, and underwoods have been grubbed up, and the land turned to a more useful account. The first four subjects of rate mentioned in the statute, are clearly such as yield an annual profit. Why coal mines were so specifically mentioned may reasonably be accounted for. When the framers of the act proposed to rate underwood, it was no doubt upon the principle that it produced an annual profit. Upon which, it would be very naturally suggested, "If you rate underwood, why not rate coal mines, which produce a profit to the owner of the soil." It is highly probable that it was upon some such suggestion as this, that coal mines were introduced into the statute. Coal mines, when worked, do produce something like an annual profit, and are therefore very properly the subject of rate. Now the question arising in this case 1823. The KING V. The of FERRYBRIDGE. is, what description of underwood was meant by the Legislature when the statute was passed. It is argued, that every species of wood which is not, properly speaking, timber, must be considered underwood, and there- INHABITANTS fore rateable. I think the true construction of this statute will not support that argument. The Legislature have expressed themselves most accurately, for the purpose of shewing what they intended. They have not confined themselves simply to the use of the word "underwood;" for if they had, that would have let in the argument now urged; but they have qualified the use of the term "underwood," by introducing the word "saleable," thereby shewing that they did not mean every species of wood which is not timber. By the words "saleable underwood," is clearly meant that description of wood which, when once plauted, and after being cut, produces new shoots, which at regular, certain, and known periods, may be cut down and sold for a profit. These are the sorts of wood which were contemplated, and which come as nearly to an annual produce as possible. The Legislature never could intend by these words, to comprehend perishable trees, which, when cut down, are no longer profitable, producing no new shoots, and yielding no renewal of profit from the stools. It is true in this case, that the cuttings of the firs and larches produced a profit; but it is not every thing that produces a profit which is rateable. The wood which is to be rated is that upon which a profit can with some degree of certainty be calculated at the time when it is planted. From underwood, properly so called, the cultivator may calculate, with some degree of certainty, upon deriving a profit; but that is by no means the case with respect to firs and larches. Now here the cultivator of the firs and larches did not originally contemplate a profit by the sale of them. He did 1823. The KING v. The INHABITANTS of FERRYBRIDGE. not plant for the purpose of sale merely. It is found in the case, that they were planted expressly for the purpose of nursing the young timber trees, which would be destroyed by the wind, unless they had the protection of other trees of a quicker growth. Profit may undoubtedly have been made of them, but that was a secondary consideration; the primary object was the cultivation of the timber, to which the proprietor looked, as the source of remuneration for his trouble and expense. I agree with my Brother Bayley, that if this species of property were to be made the subject of a poor rate, it would have a direct tendency to check the cultivation of timber, because no man would embark his property in undertakings of this nature, which hold out only a remote prospect of advantage, if in the mean time his plantation is to be subject to a permanent rate. It has been argued, that this case may be compared to the liability to pay tithes. This is not at all like a case of tithes. Every species of wood which is not timber by common law or custom, is titheable; but there cannot be a custom to impose poor rates upon a species of property which was never considered a subject of rate. No resort has been had to any other definition of underwood, than that which is given by Lord Coke; but I think that definition does not help the argument. We all know that underwood is generally let to the tenant of a farm, and when that is the case, a stipulation is introduced into the lease that the tenant shall be at liberty to cut underwood at ten or fifteen years' growth; but could it be argued, that within the spirit of this permission, the tenant might cut down his landlord's fir plantation? In such a case a Judge would, I apprehend, have no difficulty in telling the Jury, that fir plantations did not come within a license to cut underwood. If, however, this is to be considered underwood, still it is not saleable underwood within the statute, and cannot be rated. Order of Sessions confirmed (a). 6. 1823. The KING v. 'The INHABITANTS of FERRY BRIDGE. 50 Edw. 3. c. 17. s. 13. (a) See Year Books, 40 Edw. 3. 25. 42 Edw. 3. 10. 7 Hen. 6. 38. 11 Hen. 6. 1. Stat. 35 Hen. 8. Godb. 4. Cro. Eliz. 1. 413. 4 Rep. 31. Moore, $55. Co. Lit. 58. Jenkin's Cents. 274. Cro. Jac. 514. Moore, 812. and Bro. Abr. tit. Waste, 21. The KING v. WEIR and Others. be directed to a constable by name, he may execute it any where within tion of the the jurisdicbut if it is diMagistrate; rected to him com- office, he can under in the parish, New &c. of which by his name of execute it only INDICTMENT against the defendants for assaulting If a warrant James Ritchie, one of the constables of the parish of Woolwich, in the due execution of his office. Plea, Not Guilty. At the trial before Richards, C. B., at the Kent Summer Assizes, 1822, it appeared that the defendants were servants of the Kent Water Works Company, having the superintendance of their steam engine and premises, situate in the parish of St. Paul, Deptford. The pany having been assessed by the Commissioners the Woolwich Poor, Paving and Watching, and Gaol Acts, refused to pay the assessment, upon the ground that they were not legally rateable, and conse- wa quently a distress was levied upon their premises at Deptford, under a warrant directed "To Charles Sargent, one of the collectors of parochial rates of the parish of Woolwich, in the county of Kent, to the constables of the and to all said parish, and to all others, his Majesty's officers, he is a consta ble. There fore where a warrant for levying a rate was directed "to the constables of the parish of W., others, his Majesty's officers whom these may concern,” and a constable of W., in attempting to execute it in the parish of D., was assaulted-Held, that the assault was justifiable. 1823. The KING v. WEIR. whom these may concern." On the 18th of June, 1821, the prosecutor Ritchie, with an assistant, entered the premises, in execution of this warrant, when they were forcibly expelled by the defendants, without being able to effect their object. This was the assault complained of. It was objected for the defendants, that as the warrant was directed to the constables of Woolwich, and all other constables generally, the prosecutor, who was a constable of Woolwich, was, by the language of the warrant, limited to act within the jurisdiction of that parish only, and had no authority beyond it; and that consequently, as he had served the warrant in the parish of St. Paul, Deptford, he had acted illegally, and the indictment could not be sustained. The case of Blatcher v. Kemp(a), was cited in support of the objection, which was over-ruled, but the learned Judge reserved the point for the consideration of the Court upon a motion to enter a verdict of Not Guilty, and the defendants were found Guilty. Marryat, in Michaelmas Term last, obtained a rule nisi to set aside the verdict of guilty, and enter a verdict of not guilty. Taddy, Serjt., Andrews, and Claridge, now shewed cause. There is a manifest distinction between the present case and Blatcher v. Kemp. There the warrant was directed to each constable of the county within his own district, and consequently each was limited to his peculiar jurisdiction; here, the warrant is directed generally to all the constables of Woolwich, and to all others, and the prosecutor being one of those constables, was authorized to act any where within the county of Kent. The (a) 1 H. Bl. 17, note. |