Ex. CH.]

THE BISHOP OF WINCHESTER v. RUGG.

[ARCHES.

recognise the difference in the remuneration for
similar work to the clergyman and the registrar, and
the labourer can, if he pleases, be married at the
statutable price. Upon the whole, I am of opinion
that the judgment of the Court of Queen's Bench
ought to be reversed.
Judgment affirmed.

Gwilt.
Attorneys for the plaintiff, Stephens, Smith, and

Attorneys for the defendant, Dale and Stretton.

COURT OF ARCHES.
Reported by HENRY F. PURCELL, Esq., Barrister-at-Law.
April 18 and 27 and May 2, 1868.
(Before the Right Hon. Sir R. PHILLIMORE,
Dean of Arches.)

THE BISHOP OF WINCHESTER v. RUGG. Parish consisting of two benefices with a chapelry in each-Duty of incumbent to perform divine serviceAuthority of the ordinary-1 & 2 Vict. c. 106, s. 80. The incumbent of a parish consisting of two benefices, with a chapelry in each, discontinued the performance of divine service on Sundays in one, and held two services in the other, and a suit being brought to compet him to perform one service every Sunday in the former, in accordance with the direction of his ordinary, he was admonished to obey such direction, it being

Held that, when the circumstances of a parish are such as not to furnish the means of performing full divine service in both churches of an united parish, it is the intendment of the law, both common and ecclesiastical, that a service shall be performed every Sunday in each church, and that no discretion in the matter is vested in the incumbent.

deacon of Colchester really received those identical | the lay registrar. The Marriage Acts themselves fees in the reign of Richard I. is at least as difficult to believe as that the fees now claimed were then paid to the rector of Horton; yet the court decided, notwithstanding such rankness, that the ordinary presumption from long user ought to be made. That decision, therefore, appears to me to be a distinct authority against the decision of the majority of the Court of Queen's Bench in the present case. It was said in the Queen's Bench in the present case, that the point of rankness was not taken by the learned counsel who argued the case of Shepherd v. Payne for the appellant in the Court of Exchequer Chamber. The fact that Mr. Mellish did not take the point, considering he was on the losing side, and wanted a good point, is in itself not without significance; but it certainly was taken in the Court of Common Pleas, and although it was not formally taken in the Exchequer Chamber, yet that it was present to the minds of that court in giving judgment seems clear from the terms of the judgment itself. "The true rule," says Blackburn, J., in delivering the udgment of the court, "seems to be laid down by Lord Wensleydale, in Jenkins v. Harvey, 1 C. M. & R. p. 877, where he says that the correct mode to direct a jury is to tell them that they should find the immemorial existence of the payment (if that be necessary for its validity) unless some evidence is given to the contrary, or, as he says in delivering the written judgment of the court on the second trial of the case, 2 Cr. M. & R. 407, from proof that an office existed in 1752 the jury may, and ought, to presume it to be prescriptive, if that be necessary to make it valid, unless the contrary be proved. The claim in that case was by the Corporation of Truro for a metage due of 4d. per chaldron of coals in that port, and it was supported. I may mention this as showing that that is meant by the latter part of the sentence quoted. I suppose neither the Barons of the Exchequer nor the jurors as antiquarians, believed that 4d. per chaldron was actually paid before Richard I. returned from the Holy Land, but the modern user was enough to cast upon the other side the onus of proving that it was an usurpation. We think, therefore, that if it be necessary for the validity of these fees that fees of that amount should be immemorial, that presumption ought to be made." This was the judgment of Pollock, C. B., Channell, B., Blackburn and Mellor, JJ., and Bramwell, B., agreeing with the Court of Common Pleas, both in their judgments and the reasons upon which it was found, in support of which see also the authorities collected in the judgment in the case of Mills v. The Mayor of Colchester, 36 L. J. 210, C. B.; 16 L. T. Rep. N. S. 626. Upon these grounds, therefore, and agreeing as I do with the judgment of Blackburn, J. in the court below, I am of opinion that the claim of the defendant to the fees in question cannot be defeated upon the ground of rankness as applied by the majority of the Court of Queen's Bench. There remains the question of fact, are the fees reasonable? and, looking at the statements on the special case, I cannot say they are otherwise than reasonable. It appears that the fees claimed, including the certificate, have been paid as far as living memory extends, without demur, and they would probably have been so continued had not the clergyman insisted upon that which he had no right to insist upon, viz., prepayment. It appears also, that although the fees claimed are considerably higher than in the majority of the neighbouring parishes, yet that the fees in some are the same, and in one or two, somewhat larger than those here claimed. Nor do I think the charge to the labourer of the fee claimed less reasonable or more opposed to public policy than the demand of 5s. by

No restriction is imposed upon the authority of a bishop by the 1 & 2 Vict. c. 106, s. 80, to compel the performance of two services, one in each chapel of a parish, every Sunday.

Semble, the consent of the incumbent is not necessary to the valid consecration of a church by the ordinary.

This was a cause instituted in this court by reason of letters of request from the Bishop of Winchester under the provisions of the Clergy Discipline Act (3 & 4 Vict. c. 86).

The Bishop of Winchester was the promoter of the office of the judge; the defendant was the Rev. Lewis Rugg, a beneficed clerk in the diocese of Winchester.

The object of the suit was to compel Mr. Rugg, who is the incumbent of Ecchinswell with Sydmonton, to perform one service every Sunday in the chapel of the latter benefice.

It appeared from the allegations in the articles that in 1852 Mr. Rugg had been licensed to be the perpetual curate of Ecchinswell with Sydmonton in the diocese of Winchester, and that the benefice consisted of two ancient parochial chapelries, viz., Ecchinswell and Sydmonton, having in each a consecrated church known respectively as the church or chapel of St. Lawrence Ecchinswell and the church or chapel of St. Mary Sydmonton; these belonged, for ecclesiastical purposes up to the 18th Aug. 1852, to the pasish of Kingsclere; but at that date, by an order in council, were formed into a separate parish. The charge laid in the petition was that for the last two years Mr. Rugg had omitted to perform divine service in the chapel of Sydmonton. In his answer Mr. Rugg alleged, in reference to the building called the

ARCHES.]

THE BISHOP OF WINCHEster v. Rugg.

[ARCHES.

Dr. Deane, Q. C. and Dr. Swabey appeared for the promoter.

church of St. Mary, Sydmonton, that there had | April, on which day Mr. Rugg appeared in person been formerly an unconsecrated building, or oratory, and argued his case; and counsel for the promoter or field chapel standing in the private garden having briefly replied, the court took time to of the late Mr. William Kingsmill, of Syd- consider its judgment. monton, and that in the month of Feb. 1849 the said William Kingsmill, without any faculty, caused the said unconsecrated building to be pulled down as though it were his own private property, although it was appendant to and belonged to the parish church of Kingsclere, at which time the whole material thereof was removed, and all the furniture belonging thereto was carried away. That to this old building, whether it were a chapel of ease or oratory, there was no endowment of tithe or glebe, or property of any kind. That for the services performed in it, which were never regular, only occasional, there was in ancient times some recompense, by means of oblations or voluntary offerings, which have long ceased to be paid. That the said chapel or oratory never had in it the rights of burial or of marriage, nor of sacraments, until a small benefaction of 25s. was left in 1726, to be paid yearly to the minister of Kingsclere for preaching a sermon and administering the sacrament of the Lord's Supper on Trinity Sunday, to include the finding on his part of the sacramental elements of bread and wine. That there was not belonging to the said chapel any ground outside the walls of it, but it was entirely surrounded by the private ground of the owner of Sydmontonhouse. That at the date of the Order in Council, in Aug. 1852, the said field chapel had ceased to have any existence, it having three years before been entirely removed. That the said order in council, recognising the existence of a chapel and chapel-yard at Sydmonton, was issued upon mistaken information at the time, as there was neither chapel nor chapel-yard, nor building of any kind, which the law of the land or any ecclesiastical jurisdiction could take notice of or recognise as either a parish church or chapel. That at the time of his admission to the incumbency of Ecchinswell-cumSydmonton, viz., on Sept. 29, 1852, there was but one presentative church upon the benefice, viz., that of the parish church of St. Lawrence, Ecchinswell. That during the whole period of his immediate predecessor's incumbency, and for nearly a twelvemonth after his own admission, from Feb. 1849 to May 1853, there had not been any public divine service performed except in the aforesaid parish church of St. Lawrence, Ecchins well-cum-Sydmonton. That the late Mr. William Kingsmill, in or about the year 1853, rebuilt the aforesaid field chapel or oratory without a faculty, partly on the site of the old one, without consulting or reference to the incumbent, the party proponent. That the tower, porch, and vestry were additions, and a small transept on the north side of the ancient edifice was never rebuilt. That the ancient footway and entrance by the western door under the belfry or bell turret has been stopped up and impeded by the erection of the tower, and a new road by a more distant and circuitous way and entrance on the south side has been made in lieu thereof, without any legal sanction or any authority whatever. That the old road and entrance by which alone access was obtained to the chapel, is now claimed by the present owner of Sydmonton-house, as his private garden-road; and that he has, at present, no admission by the former way, but by the favour of the proprietor of the ground adjoining.

The 18th April had been fixed peremptorily for the hearing of the cause, but Mr. Rugg did not appear, and his proctor applied for a postponement on the ground of Mr. Rugg's illness, and stated that he intended to appear in person. The application was refused, on consideration of all the circumstances. The hearing was continued on the 27th

May 2.-Sir R. PHILLIMORE.-It is not necessary to consider the question whether or no, previously to Aug. 1865, the church which occupied the site of the present church built in 1853, had been consecrated or not. The order in council which dates from the 18th Aug. 1852, severs the chapelries of Ecchins well and Sydmonton from the vicarage and parish church of Kingsclere, and forms them "into a separate parish for ecclesiastical purposes, and a perpetual curacy and benefice, by the name or style of the perpetual curacy of Ecchinswell with Sydmonton." The same order recites: "That there is in each of the said chapelries a church or chapel, that of Ecchinswell being nearly two miles, and that of Sydmonton being about three miles distant from the parish church of Kingsclere." It further recites that each of the chapelries has its own churchwardens; that the tithe rentcharge of Ecchinswell was commuted at 607., and that of Sydmonton at 50l. 8s. 6d; that the fees of beth chapelries were 21. These recitals in the order in council furnish evidence which the court is bound to accept so far as they affect the question now before it. Mr. Rugg was in Sept. 1852 instituted as incumbent of Ecchinswell with Sydmonton. Mr. Kingsmill, the principal owner of land in the parish, rebuilt the chapel at Sydmonton in 1853. It appears from the pamphlet printed by Mr. Rugg (which has been admitted as evidence in the cause), p. 5, that for twelve years divine service was performed by him at Sydmonton. That in 1863 he had an unfortunate quarrel with Mr. Kingsmill about sittings in the chapel, and thereupon suspended divine service in the chapel of Sydmonton, which was no doubt illegal as well as wrong. On Dec. 17th the bishop wrote to Mr. Rugg, enclosing a letter from one of the churchwardens of Sydmonton, complaining of Mr. Rugg that on various Sundays there was no service at Sydmonton; that Mr. Rugg said he was not well or strong enough sometimes to perform service, and the writer adds, "he says he is not compelled to take the service at Sydmonton because the church was not consecrated when rebuilt," that is, in 1853. On Dec. 21 Mr. Rugg wrote a long answer to the bishop, in which he maintained that as the church was not consecrated he was not legally bound to perform service in it, and observed that "the portion of the endowment as regards Sydmonton does not amount, after the outgoings, to more than 20. a year. A further correspondence ensued between Mr. Rugg and the bishop, in which the former maintained that he was not bound to officiate in an unconsecrated church. Early in Aug. 1865 (p. 19) Mr. Rugg received notice that the bishop intended to consecrate the chapel. Mr. Rugg declared that he would not consent to the consecration and refused the use of his key for the purpose of opening the door of the church. The bishop however proceeded to perform his duty and consecrated the church on Aug. 17, 1865. Mr. Rugg maintains that this consecration has had no legal effect, and admits that he has performed no divine service at Sydmonton on the days laid in the articies, and as I understood him, for a whole year, dating from the present month. There is no difficulty in deciding that this part of Mr. Rugg's defence is untenable and bad. I have no doubt at all that the church was duly and legally consecrated; that Mr. Rugg, by withholding his consent, in no way affected the legal validity

ARCHES.]

THE BISHOP OF WINCHESter v. Rugg.

of the act. It is not necessary that I should
again advert to the order in council, but I
listened with surprise to Mr. Rugg's assertion
that Sydmonton was unendowed, whereas it
is plain that he derives nearly as much income
from it as from Ecchinswell. However, the
question of the validity of this consecration has
been determined by the Privy Council, whose deci-
sion is binding upon me. It happened that the
Consistory of Winchester granted a faculty to Mr.
Kingsmill for a vault under the chancel of this
chapel. Mr. Rugg opposed this grant, and appealed
to the Privy Council from a sentence of the Court
of Arches confirming this grant. The Privy
Council on this occasion decided not only in
express terms, but by their act, so to speak, that
this church was consecrated, for they granted the
faculty under conditions to Mr. Kingsmill. These
conditions related to a further consecration of
ground adjoining the chapel. It is needless, how-
ever, to say to any person acquainted with eccle-
siastical law that a faculty cannot be granted for a
vault in an unconsecrated building. As to the
objection raised by Mr. Rugg that there is no right
of way to this chapel, and that, therefore, he is
excused from performing service therein, to pass
over the answers that this objection is not sustained
by any evidence, but is clearly an afterthought to
support Mr. Rugg's resolution, taken upon other
grounds, not to perform service in this chapel, the
law seems to me clear that, if there is no access to
this chapel except through the lands of Mr. Kings-
mill, that there must be what is called "a way by
necessity" over the land of Mr. Kingsmill to this
chapel, which is a public building to which all the
parishioners of Sydmonton have a right to resort :
(Burn's Eccl. Law, vol. 1, p. 394, "Church Way;"
Petersdorf's State and Practice, vol. 6. p. 643.) |
The only question as to which there really can be
anything like a serious argument in this case arises
out of the second branch of Mr. Rugg's defence,
which is, briefly stated, that in the case of an incum-
bent having a parish consisting of two benefices,
with a chapel or church in each, it is competent to
the incumbent to perform service in one of these
chapels or churches alone, and that by so doing he
satisfies the requisitions of the Act of Uniformity
and of the general ecclesiastical law; that a dis-
cretion as to this matter is vested in the incumbent,
and not in the bishop; that the parishioners of
Sydmonton, whatever may be said in the order of
council, have no right or title to have divine
service performed at all in their church. The con-
sequence, I may observe, of this position would be
that they would be altogether deprived of their
strict right to attend divine service; for if the
accommodation of Ecchinswell be only sufficient for
the parishioners of that chapelry, the parishioners
of Sydmonton have certainly no legal right to sit
tings in the church of Ecchinswell. Another con-
sequence would be that if Mr. Rugg chose to shut
up the chapel of Ecchinswell, wherein the majority
of the parishioners reside, and perform service in
Sydmonton alone, it would be competent to him to
do so. It is not denied that by the existing law
Mr. Rugg is compellable to perform morning and
evening service in his parish, according to the
Act of Uniformity (13 & 14 Car. 2, s. 2).
According to the provisions of the 1 & 2 Vict. c. 106,
sect. 80, the bishop may order two full services,
including a sermon or lecture, to be performed on
every Sunday throughout the year, in the church
or chapel of every or any benefice within his
diocese; but in this case the exercise of his discre-
tion is restrained by the conditions relative to the
value of the living and the number of the popula-
tion. But no such restriction is imposed upon the
authority of the bishop to compel the performance

[ARCHES.

of two services in each chapel of a parish. The
17 Car. 2, c. 3, sect. 1, p. 4, was cited by Mr. Rugg;
but in the first place the statute applies only to
a very particular class of churches, those of cities
and towns corporate, and in the second place the
principle of the Act is directly opposed to Mr.
Rugg's argument, for the discretion as to the per-
formance of divine service is expressly vested in
the bishop and not in the minister. There are in
this kingdom many parishes which contain united
benefices, with a church in each, and it is, I believe,
for the very first time that it has been contended by
the incumbent of such a parish that it is competent
to him to perform divine service in one of these
chapels only, and that the inhabitants of the dis-
trict in which the other church is situated may be
deprived of their right, equally recognised by the
common and by the ecclesiastical law of this realm,
to the performance of divine service by their
minister in their own church. To whom are these
parishioners to look for redress for this wrong done
to them? How are they to obtain the performance
of divine service in this church? Surely by an
appeal to the authority of their bishop. He has the
cura curarum animarum within his diocese; it is his
bounden duty to enforce in every church within his
diocese the performance of the services prescribed
in the Book of Common Prayer; and, where the
circumstances of the parish are unfortunately such
as not to furnish the means of performing full
divine service in both churches of an united parish,
it is, in my opinion, clearly the intendment of the
law, ancient and modern, common and ecclesiastical,
as well as of the particular order in council, under
which these parishes were united, that a service
should be performed every Sunday in each church;
so that the inhabitants of both parishes should have
access, upon this holy day at least, to their respec-
tive churches, and receive the benefit of the
ministrations of the Church, according to such a
distribution of the duty of the incumbent as may
best secure this object-that is, according to the
opinion of the bishop in this case, by alternate
morning and evening services in the two churches.
I see no reason to doubt that the general authority
of the ordinary in matters of this kind, recognised
by the universal ecclesiastical law as inherent in the
nature of his office, and necessary for the perform-
ance of the duties which are cast upon him, is pro-
perly applied to a case of this kind. I think that
the parishioners of Sydmonton are entitled to the
performance of a service by their minister in their
church every Sunday; that the Bishop has rightly
exercised his discretion in commanding Mr. Rugg
to perform this service; and I must formally
admonish Mr. Rugg-as I now do-to obey the
direction of his ordinary. It is right that I should
call the serious attention of Mr. Rugg to the order
of this court. I am glad to perceive that he has
the assistance of an experienced proctor, from whom
he may learn, if not otherwise informed, that a dis-
obedience to the orders of this court will be attended
with the grave penal consequences which the law
attaches to the offence of contumacy. I must fur-
ther, in the execution of my duty, condemn Mr.
Rugg in all the costs of these proceedings.

Proctors for the promoter, Moore and Currey
Proctor for the defendant, Brooks.

Q. B. WATKINS (app.) v. THE CHURCHwardens, &c., of Milton next GraVESEND (resps.) [Q. B.

COURT OF QUEEN'S BENCH. Reported by T. W. SAUNDERS and J. SHORTT, Esqrs., Barristers-at-Law.

Saturday, April 25, 1868.

WATKINS (app.) v. THE CHURCHWARDENS AND
OVERSEERS OF MILTON NEXT GRAVESEND AND
THE ASSESSMENT COMMITTEE OF THE GRAVESEND
AND MILTON UNION (resps.)

Poor-rate-Occupation-Exclusive use-Licence-
Moorings in river-Coal-hulk.

The conservators of the river Thames fired certain moor-
ings in the bed of the river, and by a written document
granted to the appellant, the owner of a coal hulk,
"liberty and licence to fasten and henceforth keep
fastened his coal hulk or vessel called the Black Prince,
to the moorings placed by the conservators in the said
river at Gravesend Reach until either party shall have
given to the other one calendar month's notice in writing
to determine and put an end to the licence;" in consi-
deration whereof the appellant agreed with the con-
servators "to pay towards the expenses of the said
conservators in placing, maintaining and repairing
the said moorings the annual sum of sum of 30l., and
the proportion of 301. for any less period than a year."
The appellant's hulk remained fastened to these moor-
ings for about five years, and during that time the
appellant enjoyed the exclusive possession of them.
The moorings consisted of two large fan-shaped screws
fixed into the soil, and the chains connected with them:
Held, that the document above referred to amounted only
to a licence to use the moorings, and not to a demise of
them to the appellant; that he was not the occupier,
and therefore was not liable to be rated.

CASE.

1. This is a case stated by consent of the parties, under the provisions of the statute 12 & 13 Vict. c. 45, s. 11, and the question for the opinion of the court relates to the rateability of the appellants to the poor-rates made and to be made for the parish of Milton-next-Gravesend in the county of Kent.

2. In a valuation list for the said parish, made under the provisions of the statutes 25 & 26 Vict. c. 103, and 27 & 28 Vict. c. 39, and in the rate, the name of the appellant William Watkins is inserted in manner following, that is to say:

Black 1600 £300 £240
and coal Prince. tons.
hulk
thereon.

stored therein are brought up in colliers, which can
run alongside at all times of the tide, and discharge
their cargo into it. The coals being thus deposited
in the same way as coals are deposited in warehouses
or storehouses built on wharves, are partly sold to
the owners of steam tugs and other steam vessels,
and partly used by the said appellant for steam tugs
of his own. In either case the steam vessel can
receive the coal by coming alongside the hulk in
the same manner as the collier which previously
discharged it; or if occasion should require the
hulk itself, with its store of coals, can be loosed.
from its moorings, and towed by a steam tug to any
part of the river where there is sufficient water.
It has, however, been at its present moorings since
July 1863, without removal, but in the ordinary
course of things will, from time to time, at intervals
of four or five years, require removal for repairs.
5. The hulk is fitted with proper apparatus for
lifting coals and transferring them from the colliers
to its own hold, and from its own hold to any
vessel which may be placed alongside, and also with
a cabin which is occupied by servants of the said
appellant, who reside there day and night, and have
charge of the hulk and the coals kept there in
store.

6. The moorings to which the hulk is secured are permanently fixed in the bed and soil of the river Thames by, and are the property of, the conservators of the river Thames, incorporated and acting. under the provisions of the Thames Conservancy Acts 1857 and 1864, which are to be taken as part of this case, and such moorings were fixed for the use of the hulks of the said appellant. They are which are laid down for the temporary use of vessels not provided with buoys, as is usual with moorings

in the river.

7. The said moorings consist of two large iron fan-shaped screws, which are screwed into the bed or soil of the river to the depth of about eight feet, and at a distance of about forty feet from each other. They are connected together by means of two chains, which are shackled one to each screw, and both to a central ring; from this ring a third chain, called a "pennant," is carried up to the surface of the water, where it terminates in another ring, to which ring the hulk is fixed, as hereinafter mentioned.

8. The whole of these moorings are the property of the conservators, and they are used by the said appellant by virtue of the following document:

We, the conservators of the River Thames, do grant to William Watkins, of 52, Lime-street, City, and Blackwall, liberty and licence to fasten and henceforth keep fastened his coal hulk or vessel called the Black Prince to the moorings placed by the conservators in the said river at Gravesend Reach, until either party shall have given to the other one calendar month's notice in writing to determine and put an end to this licence. In consideration whereof the said William Watkins agrees with the said conservators to pay towards the expenses of the said conservators in placing, maintaining, and repairing the said moorings, the annual sum of thirty pounds, and the due proportion of thirty pounds for any less period than a year, the first payment to be made on the 29th Sept. 1864; and the said William Watkins further agrees that no more than three vessels shall at any one Protime be fastened or attached to the said coal hulk. By virtue of the

3. The land mentioned in the column headed "Description of Property" is part of the bed of the river Thames within the parish occupied by the moorings hereinafter mentioned.

Conservancy Acts 1857 and 1864 hereinafter mentioned, the bed and soil of the river Thames are vested in the conservators of the said river. The coal-hulk mentioned in the same column is the hulk called the Black Prince in the column headed "Name and Situation of Property," and belongs to the said appellant, and lies afloat on the river Thames, within the boundary of the parish of Milton aforesaid. It is an iron-built vessel of 1600 tons, expressly constructed for the purpose of being fastened to the moorings hereinafter mentioned, and used as a depository for coals.

4. The said hulk has not in itself any means of locomotion, either by sails or engines. The coals

vided that under no circumstances whatsoever shall the said
conservators be liable for any damage or loss arising from
or in consequence of the breaking of the moorings, chains,
or any imperfections or failure of the said moorings.
Dated 3rd Aug. 1863.
(Signed) E. BURSTALL, Sec.

9. The chain cables of the hulk itself are shackled to the upper ring of the moorings above described, and are brought on board through the hawse pipes, and screwed to a windlass by means of which the hulk itself is heaved up to or shackled off from the moorings. The hulk is moored entirely by the stem, and swings with the tide, and alters its position to the set of the current. It never takes the ground at any time, or under any circumstances. Seven other hulks belonging to different owners,

10. The said appellant duly appealed to the assessment committee against the said valuation list on the following grounds: That the said sand and coal hulk thereon are not liable to be rated to the relief of the poor; that the appellant is not the occupier of any land with coal hulk thereon in the said parish; that the appellant, if rateable at all, was over rated, both as respects the gross estimated rental and the net rateable value of the property; and upon the said appeal he failed to obtain any relief.

11. The appellant thereon gave due notice of appeal to the Quarter Sessions of and for the borough of Gravesend against a rate for the relief of the poor of the said parish of Milton, made in accordance with the said valuation list on the 7th June 1866, whereupon it was agreed that this case should be stated by consent under the provisions of the statute firstly above mentioned. It is further agreed that neither party shall raise any technical difficulties or objections, and that the case should be decided on the merits. The court is to be at liberty to draw any inferences of fact if it should think fit so to do, and may order the case to be amended in any way.

Q. B.] WATKINS (app.) v. THE CHURCHWARDENS, &c., OF MILTON NEXT GRAVESEND (resps.) [Q. B. and each having a separate and distinct mooring are | moorings are fastened, and that must be held to be also included in the valuation list and rate, the occupied by the conservators, not by the appellant. amounts at which they are valued varying in each If the appellant's hulk slipped off from its moorings, case principally according to the size of the hulk. the occupation of the land by the moorings would Each of the owners and occupiers of such other continue as before, i.e. the occupation by means of hulks has also separately appealed to the said the fan-shaped screws and chains, which belong to sessions against the said rate, and it has been agreed the conservators. The licence given to the appellant that but one of such appeals shall be proceeded with, to fasten the hulk to these moorings does not prevent and the decision of the court thereon shall govern the conservators from mooring their own boats to all the rest, and that each appellant shall be con- them also. The terms of the licence bear out this tributory to the costs of and attending such appeal, view; for Mr. Watkins is not to pay the whole and the proceedings therein. expenses of these moorings, but only "to pay towards the expenses of the said conservators of placing, maintaining, and repairing the said moorings the annual sum of 301." One test of occupation is the right to bring an action of trespass. Now the appellant could not bring an action of trespass against the conservators for fastening any of their own boats or yachts to these moorings. In R. v. The Trent and Mersey Navigation Company, 4 B. & C. 62, where a canal company having entered, under a power in a contract, on the possession of certain quarries, and continued to work them for twenty years, Abbot, C. J. says, "The owners having neglected to supply the stone ordered, the company many years ago entered, and have ever since worked the quarry for themselves; and in point of fact no one else has ever got stone there. But the right of the company was merely to get there what stone they might think fit; there was nothing in the contract to prevent the owner from giving to others also the privilege of getting stone in the same quarry. The company therefore had not any sole and exclusive occupation, but a mere privilege, and consequently were not liable to be rated to the relief of the poor." An authority to the same effect is R. v. The Mersey and Irwell Navigation Company (9 B. & C. 95.) There Parke, J. says, "The question is whether they (the appellants) are occupiers of land? If they have a mere easement they are not rateable. Persons who have a right of common, a right of way-leave, or a right of ferry, are not rateable No person can be an occupier unless he has the exclusive right to enjoy some portion of the soil." The case of Reg. v. Morrish (32 L. J., 245, M. C.) is decisive in favour of the appellant. Wightman, J. says "To make the occupier liable, the occupation ought to be exclusive in its nature. Here the appellant could hadly have power to turn off the commissioners and their friends if they had chosen to walk through the 40,000 square feet of the exhibition premises which had been appropriated to him with the exclusive privilege of selling refreshments. The commissioners would have a right to walk over that part, leaving to the appellant his exclusive right of selling the refreshments. It seems to me that there was a mere grant of the licence to exercise the right of supplying refreshments within the space allotted to him, and for the purpose of exercising that right to make certain erections, but that there was no such occupation as would make him liable to pay rates." Reg. v. Morrison (1 El. & Bl. 150) is also an authority in favour of the appellant. Reg. v. Forrest, 27 L. J. 96, M. C., in which the barge at low water rested on blocks fixed into the bed of the river for the purpose, is distinguishable from the present case. Lord Campbell, Č. J. states the reasons for holding the appellants in that case rateable: "At low water the pier rests on blocks fixed in the bed of the river for that purpose; at other times it floats, but at all times it is kept in its place by iron chain cables fastened to iron anchors placed in the bed of the river, and by an iron chain attached to an iron staple fixed in the stone stairs which constitute the landing-place. There it has remained for fourteen years, and there only can it be used for the purpose to which it is to be applied. It therefore has a locality, and the

12. The question for the opinion of the court therefore, is, is the appellant, William Watkins, liable to be rated to the relief of the poor of the said parish of Milton in respect of his occupation of the said land and hulk, under the circumstances stated in this case?

13. If he is so liable, the valuation list and the rate of the 7th June 1866 are to be confirmed so far as to retain the name of the appellant and the description of the property therein, otherwise the same are to be amended by striking the name of the appellant, and the description of property out of both. If, however, the court should be of opinion that the appellant is rateable in respect of any portion of the property, then the rate and valuation list are to be amended according to the judgment of the court, and the amount is to be agreed upon between the parties. And it is further agreed that a judgment in conformity with the decision of this court, and for such costs as this court shall adjudge, may be entered on motion by either party at the general quarter sessions of the peace for the said borough of Gravesend holden next, or next but one, after such decision shall have been given.

Barrow (with whom was Francis) for the appellant. The manifest informality in the rate will not be insisted on in the present case. The real question is whether the appellant is rateable in respect of an occupation by this hulk. There is no occupation of the moorings whatever by the appellant. The document set out in paragraph 8 of the case amounts merely to a licence by the conservators of the river Thames to the appellant to keep his hulk fastened to the moorings placed by them in the river. There is nothing in it to exclude the conservators from the use of the moorings, in fact the property continues in them. The ground really occupied is not that perpendicularly under the hulk, but that to which the