3. We have next to notice another class of decisions, distinguished only by a very narrow difference from those which establish the non-rateability of public property. These are cases in which parties, on whom public duties are imposed, have been held rateable, not because they derive any private advantage in the ordinary sense from the occupation of the property, but because that occupation is useful to them for the purpose of discharging those duties.

Governor, &c. of the Poor of Bristol v. Wait and others, 5 Ad. & El. 1.-In this case the plaintiffs had hired property, out of the limits of the city of Bristol, for the purpose of putting out their poor, either simply to lodge them, or to employ them, at their discretion. The defendants were overseers of the parish in which they were so put out. Held rateable. In this judgment the Court to a certain extent insisted on the fact that the property thus occupied was situate in a foreign parish, and that "it does not concern the overseers and ratepayers of that parish in what manner any persons manage the property held and taken in it. But on that foundation alone the judgment could not be supported, according to the principle (already adverted to) established in R. v. Exminster. It must be taken to rest on the general ground that the duty of maintaining the poor was thrown on the plaintiffs; that by occupying property for this purpose, they discharged themselves of a burden, inasmuch as they may have occupied property somewhere for the fulfilment of their duty; and that, in this sense, they had a beneficial occupation.

In R. v. The Guardians of the Wallingford Union, 2 Perry & Davison, 266, the same principle was laid down with greater distinctness. In this well known case the question was, as to the rateability of the guardians of an union, under the Poor Law Amendment Act, for its workhouse, situated in one of the parishes of the union. The Court laid it down as "the great principle of the cases as to the exemption of property, unproductive to the occupier, from rateability," that "when that person who must be deemed the actual occupier is merely a trustee for others, and prevented by law from deriving any benefit whatever from the occupation, he cannot be considered as the occupier, for the purpose of being rated." (This dictum, we apprehend, must be taken as applicable to

the case of trustees for the public only; for we have had repeated occasion to notice, that trustees may be rated if their cestui que trusts derive a profit, though they are prevented from deriving any; (see especially the language of Grose, J., in the old case of Rex v. Agar, and R. v. St. Giles's.) The Court proceeds: "The workhouse was hired by the guardians, under the authority of the late statute, for the public purpose of maintaining the poor, and with no private advantage to the occupiers. But although the maintenance of the poor be a public purpose, the maintenance of the poor of this particular district is a burden upon that district alone. The occupation is not beneficial to the guardians individually, but the most advantageous mode of relieving their poor is an advantage to that body. . . . We decide upon the ground that this property, not being devoted to a public purpose, and being beneficially occupied, is subject to the poor's rate.”

It is perhaps not very easy to distinguish these cases, according to the principles laid down in this judgment, from others in which property is exempted from the rate. Whereever an act of parliament makes men a body for the performance of certain functions, a duty or burden is imposed upon them. For instance, the trustees of the Liverpool docks were subject to the duty of managing these. They rented, as it was expressly found in the case, certain property for the purposes of the docks; they must have derived from that property the same species of advantage which the guardians derive from their workhouse, namely, the best mode of discharging their legal obligation. So again, every municipal corporation has local duties to discharge, and it seems hard to contend that they do not derive an advantage of the same kind in the discharge of them, from the property which they hold or occupy. The maintenance of " the poor" is a public purpose; so is the improvement of corporate towns, and the payment of the salaries of their magistrates; but if the maintenance of the poor of the Wallingford Union, be "a burden upon that district alone," and therefore not public; why not the lighting of Wallingford streets, and the payment of the salary of the Wallingford town-clerk?

If there be, however, any inconsistency in these decisions, (and we are by no means so confident in our own opinion as

not to admit that there may be distinctions which we have failed to perceive), it is perhaps fairly attributable to some desire on the part of the Court to escape from the consequences of decisions which have gradually withdrawn so considerable a portion of the property of the country from local taxation. If the poor's rates were a general tax raised by the central authority, there might be little hardship in exempting particular classes of property from it, on the ground of the public benefit derived from their present employment; and it might be far better for the public interest, that municipal corporations, and other bodies, whose expenditure is be neficial to large classes, should be exempt from the imposition. But so long as the tax is local, the hardship is enormous. A corporation may possess the best lands in a parish: by the management of its estates it may give to the full as much encouragement to pauperism as any other landlord, and all the pauperism thus produced is thrown for support on the possessors of the remainder, in addition to their own. same crying evil constantly occurs in the case of lands used for public undertakings. There is also another mischief, to which we have already alluded. We have shown that, according to the course of authorities, it is at least doubtful whether a body of speculators might not escape the whole burden of rateability, merely by treating themselves in their Act as creditors of the undertaking, and introducing into it some ultimate public purpose, so distant as to be altogether visionary. We are not aware of the nature of the enactment on this subject, which it was proposed to introduce this session; but we cannot avoid expressing a hope, that, whenever any such is really proposed, its provisions will embrace all property whatever, which can be the subject of occupation; or that the exceptions, if any, will be such as are simple and intelligible, such as crown and national property in the ordinary sense.

M.

The

ART. VIII.—The Practice of the Superior Courts of Law at Westminster in Actions and Proceedings over which they have a common Jurisdiction; with Introductory Treatises, &c. &c. By Robert Lush, Esq. of Gray's Inn, Special Pleader. London: Reader. 1840.

WE learn from the preface to this work, that the design of the author in composing it was, to present, in a condensed and convenient form, a complete guide to the practitioner in civil actions, with reference as well to the selection of the parties to the suit, as to the course of proceeding therein. But, perhaps the fairest and most satisfactory course is, to allow him to explain in his own language, both what he intended to do, and what he has succeeded in doing.

After setting forth the design of the work as above stated, he proceeds to say "With this view he has given, in the form of an Introduction, a full treatise on the rights and liabilities which arise out of contracts of every description; explaining and illustrating the rules which direct who, as between the original or substituted parties, and who, in the several events of marriage, bankruptcy, insolvency, and death, is the proper person to enforce the right, or to sustain the liability. In subsequent chapters, the same course has been pursued with reference to rights and liabilities arising out of torts, or transactions unconnected with contract. These treatises, in which will also be found, it is believed, all the information necessary in ordinary cases respecting the form of action, are preceded by a chapter on the jurisdiction of the courts, for the purpose of showing to what parts of the kingdom their process does not run, in what cases their jurisdiction may be repelled, and what rights cannot from their nature be enforced in this country; and by another, showing in what cases an action is not maintainable by reason of personal disability.

"Another question which naturally introduces itself as a preliminary to commencing an action is, by whom the proceedings are to be conducted; and this involves a consideration of who may and who cannot sue in person, who may and who must sue by attorney, or by prochein amy or guardian, as well as of the right of a cestui que trust, or person

beneficially entitled to the chose en action, to use the name of the trustee or person in whom the legal right thereto is vested. Each of these considerations forms the subject of a separate chapter.

"Then follow, as incidental to the same question, the power of suing in formâ pauperis; the law of attornies, embracing their qualifications, duties, liabilities, rights, and privileges, the delivery and taxation of, and the remedy for, their costs; and lastly, the duties, rights, and liabilities of town agents, both as between them and their immediate employers, and between them and the client.

"The practical part of the work, which has thus been disencumbered of much that is elementary and theoretical, is divided into three books. The first exhibits the regular proceedings in the suit, from the issuing of the writ of summons to execution, and from thence to the affirmance or reversal of the judgment by the House of Lords, as the ultimate Court of Appeal. It contains also the practice relative to the revision of the judgments of inferior courts, by writ of error and writ of false judgment.

"The second book treats of proceedings which are occasional and incidental; such as the holding to bail, the compelling an appearance by distringas, proceeding to outlawry, &c.; and of such isolated subjects as require a separate notice, as payment into court, affidavits, service of rules, practice at the judges' chambers, &c.

"The third is devoted to the actions of ejectment and replevin, and the proceedings by arbitration.”—pref. p. v.—vii.

Of the mode in which the author has executed his task, it is difficult to speak in terms sufficiently commendatory. To great research, to a laborious compilation of all the minutia, for which the practitioner is so frequently at a loss and for which he in vain has recourse to other treatises, Mr. Lush adds a brief and lucid exposition, an excellent arrangement, and a judicious analysis of all the cases which present any apparent inconsistencies.

The preliminary chapters on parties to actions, a subject which serves as a sort of connecting link between pleading and practice, will be found exceedingly useful both to attornies and