T ... UNION. all the custom of that neighbourhood, and this is the incident to SUNDERLAND OVERSEERS the property which renders it valuable. If this could be separated from the value of the tenement, and the rent distributed accord- SUNDERLAND ingly, we should henceforth never see a demise of any publichouse in which this form of distribution would not be observed: the lessor would let the tenement at the bare rent which it was worth, and the privilege of carrying on the trade at a separate and independent rent. And this would be a receipt for reducing the annual value of the tenement to a mere shadow. But we must judge of things as they really are, and not as they may appear to be; and therefore we are to consider here whether this be not substantially one entire rent in respect of one entire subject, though artificially divided into several payments. Now, it does appear to me that this is as much a profit appurtenant to the tenement arising from its local situation, as was the profit of the weighing (1) or carding machine (2), to the *tenements there rated. And it has not been improperly likened to the case of a soke mill, which is let at a higher rent because it has a right to the sole multure of all the corn and grain in the neighbourhood. (BYLES, J.: How do you distinguish this case from Allison v. The Churchwardens, &c. of Monkwearmouth Shore ? (3). There, A., being owner of a brewery and also of thirty-three publichouses, not all situated in the same township as the brewery, demised to B. the brewery, "together with the goodwill and trade" of the public-houses, for seventeen years, B. "yielding and paying for and in respect of the said brewery" 300l., and "for and in respect of the goodwill and trade" of the publichouses 1501. B. occupied the brewery, and, under the contract contained in this lease, was enabled to compel the lessees of the several public-houses to purchase their beer at the brewery; and it would have been a breach of the contract between B. and A. if their custom had been diverted elsewhere. The public-houses, in consequence of this agreement, fetched less rent than they would have done if the occupiers had been free to get their supplies where they would: and the advantage of their compelled custom to the occupier of the brewery was worth 150l. a year. On a case reserved, stating the above facts, the question being whether the occupant of the brewery was to be rated to the relief of the poor on the value of the brewery as enhanced by this advantage, or not,-it was held by the majority of the COURT that he was properly rated on the enhanced value, it being an advantage connected with the occupation which would be taken into T. R. 721). (1) Rex v. St. Nicholas, Gloucester, Cald. 262. (2) Rex v. Hogg, 1 R, R. 375 (1 (3) 99 R, R. 323 (4 El. & BỊ. 13). [ *513] SUNDERLAND calculation by a tenant in estimating the annual rent, and that [ *545] UNION. If the decision in that case can be supported, it can only be upon [544] the ground that the *tenant paid but one rent for the whole, including the privilege annexed to the premises. He did not make the contracts with the tenants of the public-houses. He took the brewery with the privileges. (BYLES, J.: Would it have made any difference if the occupiers had been tenants from year to year, in which case there would have been a demise each year by him?) In Allison v. Monkwearmouth Shore, the stock or profits of trade were in effect rated; whereas it is only the actual value of the property which can be taken into consideration. The true principle is that which is laid down by ERLE, J., in that case. The question, said that learned Judge, is, "whether premises are rateable for the price which the occupier thereof agrees to pay to a contractor for influencing customers to the business carried on thereon. And the answer must be in the negative; for, since the Parochial Assessment Act, 6 & 7 Will. IV. c. 96, only hereditaments are rateable, that is, land with its appurtenances; and a contract between the occupier and another person is not a hereditament. It is true that the contractor here, who sells his influence over the customer, happens to be the landlord of the premises, and the contract for the influence is contained in the instrument of demise, and the price to be paid annually for the influence is called rent, and the persons to be influenced are also tenants of the same landlord: but, if a traveller with a good connection, agreeing to sell his influence to a tradesman who hired him, happened to be the landlord of that tradesman, and inserted the sale in the demise of the premises, and called the price of the influence rent, the accidental combination of traveller with that of landlord, and a misnomer in the use of the word 'rent,' would not constitute rateability: nor would the rateability of the premises be affected by the source of his influence over his customers, whether *from the compulsory power of landlord or creditor, or from more friendly ties. Also immaterial as to rateability would be the nature of the trade in respect of which the contract is made. Such a contract would not become land in the case of a brewer, more than in the case of a grocer or other tradesman. The rateability of a soke mill, for the servitude of multure in the servient district, was supposed to be analogous: but the supposed servitude is, by the hypothesis, a legal appur S N bre OVERSEERS v. UNION. tenance to the mill, and would pass with it upon a demise or SUNDERLAND sale of the land with its appurtenances. But, if the mill had no legal privilege, it would be rateable on ordinary principles, SUNDERLAND and the rateable value would not be altered by any personal contract for custom, or for influence over custom, which the miller for the time being might make with his landlord or any other person: and so of a brewery; if it had a seignory, and the publicans were bound ratione tenure to do service by buying beer at the brewery, the profit would be a profit on realty, and rateable; but, if this was obtained by contract or choice, the profit would be personal, and not rateable." Then, as to the tied public-houses, it is manifest, that, if they are to be assessed at their full rateable value, without regard to the burthen imposed upon the occupier by the contract with the brewer, the assessment on the breweries ought not to be increased also; otherwise, the same property would be rated twice. (The COURT desired to hear the argument for the respondents upon this point, before proceeding to the other part of the case.) Liddell, Q.C. (with whom was Tomlinson), for the respon- The case of Allison v. The Churchwardens, &c. of Monkwearmouth Shore (1) was rightly decided, and is conclusive on this first question. *Of the five breweries in this case, three are in the hands of the owners; the other two being held by lessees under leases with the tied public-houses annexed to them. They may, however, for the purpose of this argument, be assumed to stand on the same footing. The breweries are more valuable by reason of the assignable interest annexed to their occupation. In estimating the rent which a hypothetical tenant would give, all the advantages annexed to the occupation would necessarily be taken into consideration. (ERLE, Ch. J.: The obligation to take all their beer from the landlord's brewery is contract only, not running with the land. Suppose, instead of the publican being the brewer's tenant, the former had lent the latter money the repayment of which was secured by a bond with a covenant to take from the former all beer &c. which should be consumed on certain premises, how would that case differ from this?) The obligation to take beer is an obligation attached to each brewery. (ERLE, Ch. J.: To the brewer.) (1) 99 R. R. 323 (4 El. & Bl. 13). [ *546 7 T. UNION. SUNDERLAND The public-houses are said to be attached to the respective OVERSEERS breweries, and bound to take all their beer from the brewery to SUNDERLAND which they are so respectively attached. It is immaterial ho the obligation arises: the increased value is the same. [They also cited Staley v. The Overseers of Castleton (1), Reg. v. Williams (2), and Reg. v. The Inhabitants of Thurlstone (3).] [ 550 ] [ 553 ] [ 557 ) [ 559 ] Lush, Q.C., was heard in reply. ERLE, Ch. J.: This question is one of great importance and some difficulty. We will therefore take time for deliberation. Lush, Q.C.: The next question arises upon the Small Tenements Rating Act, 13 & 14 Vict. c. 99, and is, whether the reduction to be made under the 4th section of that Act and the 3rd section of the 14 & 15 Vict. c. 39, to the owners of small tenements who are rated instead of the occupiers, should be made from the rateable value of the hereditaments assessed, or from the rate in the pound to be levied and collected. It is submitted that the former is the true construction of the statutes. * Liddell, Q.C., contrà. Lush, Q.C., in reply. ERLE, Ch. J.: * Upon the point last argued, I am of opinion that our judgment should be for the respondents. At the first reading of the statute, the inclination of my opinion was the other way, conceiving that there was a hardship in the construction contended for by Mr. Liddell. Upon consideration, however, I think that it is not so. But, whether there be or be not any hardship, we are bound to give judgment according to the true effect of the language of the Legislature as we understand it. Now, the Legislature has required valuation lists to be made out for every parish, for the purpose of acquiring uniform and correct information as to the value of all the rateable property in the different parishes. The question is, whether the seventh column of the list the form of which is given in the schedule to the 25 & 26 Vict. c. 103, and which is headed "Rateable value," is to show the rateable value truly, or whether, in a parish which has adopted the Small Tenements Rating Act, the rateable value of the small tenements is to be set down in that column at (1) 136 R. R. 6 50 (5 B. & S. 505). 76). (3) 117 R. R. 820 (1 El. & El. 502). OVERSEERS UNION. [ *560 ] the proportion which the owner is to pay upon under the 13 & 14 SUNDERLAND Vict. c. 99, s. 4, viz. three-fourths or one-half, as the case may be. Giving effect to the words of the statute according to SUNDERLAND their plain literal meaning, I am of opinion that the true rateable value of the premises is to be inserted. It means rateable value simpliciter. All through the Act, as pointed out by Mr. Liddell, until we come to section 35, each successive enactment seems carefully framed to indicate that there shall be one uniform survey and valuation of all the rateable hereditaments in the parish, and that the result of such survey and valuation shall appear upon the face of the valuation list. I was much struck with the argument, that it is to be such a uniform correct valuation as a surveyor valuing the premises would arrive at upon viewing them and looking at the locality and the circumstances in which they stand; and that, if the rateable value of the small tenements is to be ascertained upon the principle contended for by the appellants (the overseers), such rateable value would not be that which the surveyor would arrive at upon a survey of the property as it stands, but upon a survey of the property coupled with an inquiry as to whether or not the owner had compounded with the parish, and whether he was to be assessed at threefourths or one-half of the annual value: so that the entry in the column headed "rateable value" would be subject to two accidental circumstances, and also to the further accidental circumstance that the parish which had at one time adopted the Small Tenements Rating Act, might, by giving notice under the 13 & 14 Vict. c. 99, s. 2, return to the original state of things. Showing, therefore, the sum to be paid by the owner during the time the parish had adopted the Small Tenements Rating Act, would not show the rateable value when the parish had ceased to adopt it. Thus construing the Act according to its plain literal meaning, the whole tenor of the provisions *directing these valuation lists to be made is clear to command, without limitation or exception of any kind that I can see, that the rateable value of all the hereditaments in the parish is to be ascertained according to the well-known principles of the Parochial Assessment Act, 6 & 7 Will. IV. c. 96, entirely independent of the Small Tenements Rating Act. I will presently refer to these Acts, in confirmation of that opinion. The contention on the part of the appellants, is, that, under the 35th section of the Union Assessment Committee Act, the owners of small tenements have a right to compound as heretofore, and that under s. 36 all payments are to be made as heretofore. Mr. Lush says that those sections would be wholly inoperative if the owner could not compound. But I give those sections their full opera [561] |