is a conditional hiring. The pauper tries, is found strong enough, and resides for forty days. This is a settle ment. BAYLEY, J.-It is a defeasible contract for a year, and a settlement is gained. HOLROYD, J.-This is a conditional hiring for a year, the condition being, the pauper having strength enough to do the work. The contract is not in express terms for a year, but still that does not prevent a conditional hiring for a year operating (a). Order of Sessions quashed. (a) Best, J. was absent. Saturday, Where the owner of a river navigation, running through fourteen different parishes, was rated to the poor of the fourteenth parish (in which the profits arising from The KING . SUSANNAH PALMER. THE defendant appealed to the Sessions against a rate made for the relief of the poor of the parish of Fornham All Saints, in the county of Suffolk. The assessment was as follows: "Outsetters." Mrs. Palmer, a wharf and buildings, situate in Fornham All Saints, adjoining the River Lark, alias Burn, and occupied and used for the purvigation were poses of the navigation of the said river, and the received) in the whole na respect of the towing-paths, locks, sluices, and other works, whole amount within the said parish of Fornham All Saints, of the profits: Held, that the also occupied and used for that purpose, and rate was too high, and Onght to have been apportioned among the tolls arising therefrom, due at Fornham All all the parishes through which the navigation passed. £250 The Sessions confirmed the rate, subject to the opinion of this Court on the following case :— By an act passed 11 & 12 Will. 3, intituled, "An Act for making the River Lark, alias Burn, navigable,” Henry Ashley, Esq. his heirs and assigns, were empowered and authorized to make navigable the River Lark, otherwise Burn, from a place called Long Common, a little below Mildenhall mill, to Bury St. Edmunds, and for that purpose to cleanse and open the river, and to dig and make cuts and water-courses; to erect and build sluices and bridges, and to set out and appoint towing-paths and haling ways through, over, and along the ground adjoining or near to the said river, being the ground of the King or any other person or persons, first giving such satisfaction to the owners and proprietors of the said ground, as certain Commissioners appointed by the act should direct; and it was also provided, that, after such payment, the said Henry Ashley, Esq. his heirs and assigns, should have, use, and enjoy the said cuts, water-courses, bridges, sluices, towing-paths, and haling ways, in as ample and beneficial a manner as if the same, by good title and sufficient conveyance in the law, had been absolutely sold and conveyed to him, his heirs and assigns. By sec. 12, the said H. Ashley, his heirs and assigns, were empowered to demand and receive, for the freight of goods up the river, from Mildenhall mill to Bury, or down the river, from Bury to Mildenhall mill, at such place or places adjoining the said river, as he, his heirs or assigns, or their deputies or servants, should think fit, certain rates or tolls therein mentioned, and a proportionate rate or toll for any less distance. By an act of the 57 Geo. 3, for amending the last-mentioned act, certain Commissioners were empowered to direct the haling ways of the River Lark to be widened, and to ascertain what sum or sums of money should be paid by the proprietors of the navigation as a 1823. The KING v. PALMER. 1823. The KING v. PALMER. recompense, for the use of the lands or grounds which should be set out and directed to be taken, had, and used for such haling ways. By a private act, 41 Geo. 3, for inclosing the common fields and waste grounds in the parish of Fornham All Saints, part of which common fields and waste grounds adjoining the said river, Commissioners were empowered to set out public and private roads, ditches, fences, banks, drains, and water-courses; but it was provided that they should not make, do, or execute any work, bank, drain, water-course, fence, or other thing whatsoever, which should occasion any impediment to the navigation of the River Lark, the overfalls, drains, and landing-places, or to the haling ways or towing-paths, upon or along the banks of the river, belonging to the navigation or the proprietor thereof: Provided also, that in setting out the width of the baling banks (if any should be set out) respect should be had to the soil so to be set out, and that after the same should have been separated from the remainder of the land intended to be allotted and drained, the same should become vested in, and at all times thereafter supported and kept in repair by the owner or proprietor of the said navigation, freed and discharged from shuckage, and all rights of common. The act contained the general saving clause. The counsel for the appellant contended, that this act was not admissible in evidence, unless it was proved that the appellant was a consenting party thereto. By the award of the Commissioners certain copyhold lands, situate in the said parish of Fornham All Saints, but distant from the line of the navigation, was allotted to the appellant under the provisions of the said act, to which she was duly admitted, and of which she has ever since been and is now in possession. The Inclosure Act was admitted, subject to the opinion of this Court. In pursuance of the Inclosure Act, the Commissioners by their award, dated 22d September, 1804, set out and appointed, within the parish of Fornham All Saints, a haling way or towing-path, of twelve feet, along the west side of the River Lark, where it had been customary and usual to hale or tow, within the same parish, for the use and convenience, and as the property of the appellant and her heirs, proprietor or proprietors, for the time being, of the navigation, and for the use and convenience of all other persons using or navigating upon the same, for the purpose of haling or towing thereon. Mr. Ashley, the original undertaker, from whom the defendant, through her late husband, derives her title, made the river navigable from Mildenhall to Fornham All Saints, a distance of twelve miles and a half, but it was never made navigable as far as Bury, nor beyond Fornham All Saints. This navigation extends through fourteen different parishes, and is the boundary between Fornham All Saints and Fornham St. Martin's, half of the channel to the centre thereof being in the former, and half in the latter parish; but the towing-path, and the half of one sluice, and two locks, are in Fornham All Saints, the remaining half of the same sluice and locks being in Fornham St, Martin's. The towing-path is separated from the adjoining lands by a ditch. The appellant is not an inhabitant of Fornham All Saints, but resides in Bury. She is the owner, under a distinct title, of a wharf or coal yard, of about four acres, lying in the former parish, and adjoining to and situate at the extremity of the said navigation, in which said wharf are several warehouses and other buildings. Different portions of this wharf or coal yard are from time to time allotted by the agent of the appellant to the principal coal merchants who use this navigation, to the number of fourteen or fifteen. They pay no rent for these portions, but keep the division fences of their respective portions in repair. These different 1823. The KING v. PALMER. 1823. ཀ The KING v. PALMER. portions are varied from time to time by the agent of the appellant. Large quantities of coals are carted at once from the boats, and not deposited in the coal yard; but it is necessary, for the accommodation of the wholesale dealers, using the navigation, that they should have a place whereon to deposit their goods, but the appellant is not bound to provide such place. The buildings and the outer fences, and walls inclosing the wharf, and the towing-paths, locks, and sluices, are repaired by the appellant, and were erected by her or her ancestors; but it was not admitted by the appellant on the trial of the appeal, and save as aforesaid it did not appear, that all these things were repaired by her as owner of the navigation. Up to the year 1816 the appellant was rated on a rental of 177. for the coal yard, and no rate was imposed upon the profits of the navigation. The annual value of the coal yard, as mere land, is not above 37. Since the year 1816, up to the making the assessment appealed against, she has been rated in the parish of Fornham All Saints, for tolls arising from the navigation and warehouses at 250l. per annum. The tolls becoming due and received by the appellant for goods landed in the parish of Fornham All Saints, equal the amount of the assess ment. Denman, C. S. and Tindal, in support of the rate, endeavoured to distinguish this case from Rex v. Milton (a), and Rex v. The Trent and Mersey Canal Company(b), and urged the difficulty of apportioning the rate, but the Court having intimated that the late decisions were quite conclusive of the question, the argument was abandoned. ABBOTT, C. J.-I am of opinion that the defendant has been rated too high in the parish of Fornham All (a) S B. & A. 112. (b) Ante, 403. |