We have now to consider the description of property assessable as lands and heritages. That expression is declared, in the interpretation clause, to extend to and include factories, and all buildings and pertinents thereof, and all machinery fixed or attached' that is to say, attached in such a manner that the law would deem it a fixture. In one case, a party, charged L.90, 5s. for engine and engine-house,' craved that the assessment should be restricted to L.30-the value of the building-on the ground that the engine was a moveable subject, which might be taken to pieces and removed without detriment to the structure. The Commissioners gave effect to this view; but the judges held that the determination was wrong. (Case 17.)

The erections made by a tenant without any feudal title, and which will fall into the possession of the proprietor at the end of the lease, do not seem to be assessable under the Act. The Act is for the valuation of subjects held in property, not in possession; and from erections of the above description, the proprietor, pending the tenant's occupation, receives no benefit whatever. A croft belonging to Lord Lovat was let for 19 years at L.8, 10s.-the full annual value of the subjects at the time. The tenant, at his own expense, erected a house, which was used as a dwelling-house and a carpenter's shop. It was at first decided that, in such circumstances, the tenant was not the proprietor, and could not be entered as such,

VOL. VI.-NO. LXIV. APRIL 1862.

Y

because, although the term proprietor was defined as embracing 'liferenters, fiars, etc., or other persons who shall actually be in the receipt of the rents and profits of such lands and heritages,' the expression applied to a party, such as a liferent proprietor, legally entitled to the possession, and not a mere tenant for a limited term. It was then attempted to enter Lord Lovat as proprietor for the sum of L.8, 10s. (the amount of rent stipulated), plus the estimated annual value of the house erected by the tenant. The assessor maintained that the house being in esse, must belong to some one, and was actually Lord Lovat's; but his Lordship answered, that all he got for the subject was the rent at which it was bona fide let, and which must be held to be its fair annual value. The Commissioners reduced the valuation to L.8, 10s., being the full benefit derived by the landlord; and the judges held that they were right. (Case 29.) To the same effect is Case No. 2, holding that a sub-tenant in possession under an arrangement with the principal tenant, to which the landlord was no party, was a mere squatter; and that, if he chose to erect any subjects at his own cost, the Act made no provision for their valuation.

The result, however, would have been different if, in the case put, the lease had exceeded the term of 21 years. Where the stipulated duration of the lease is more than 21 years from the date of entry (or, in minerals, more than 31), the rent payable is not necessarily to be taken as the value, but the subjects are to be valued irrespective thereof; and the lessee is to be entered as proprietor, with right to deduct from his rent the proportion of taxes paid by him in respect of such entry, but which are truly due by the actual proprietor. In the case of Lord Lovat, therefore, if the lease had exceeded 21 years, the tenant would have been entered as proprietor for the full value of the subjects. It not unfrequently happens that a lease, e.g., of a field of minerals, is sublet at a considerable increase of rent. In Case 23, for instance, certain minerals were let by the proprietor for 21 years at L.200, and were sublet at L.311, 3s. The proprietor was entered for the latter sum. On appeal, it was held that although the subrent was the real annual value, their worth to the appellant was only L.200, which was all he received for them; and that there was no authority for taxing him on the difference. The original lease being for less than 31 years, the surplus rents actually paid under the sublease were lost for assessable purposes.

In another coal case the rent was L.300, or, in the landlord's

option, certain lordships, which for the year preceding had actually been taken, and amounted to only L.188, 6s. 10d. The Commissioners directed that the owner should be entered at the latter sum; but the assessor appealed, on the ground that, as the landlord was not bound to accept of less than L.300, the fact of his indulging his tenants ought not to be taken into account. The judges held that the determination of the Commissioners was wrong. (Case 24.)

In the Case No. 27 it appeared that a granite quarry in the glebe of Kirkmabreck is worked by the Liverpool Dock Commissioners, who pay a lordship of 1s. a ton; 10 per cent. of the rent is paid over to the incumbent as a compensation for the annoyance occasioned by the works; and the remaining 90 per cent. is accumulated by a committee of heritors, who pay the interest of the fund to the minister. The heritors and Presbytery objected to the quarry being valued at all, as a glebe is an inalienable subject, and the tonnage is the price paid for a portion of the glebe carried away; or, if valued, it should be entered at no more than the 10 per cent. paid to the minister. The judges directed that, in the column 'Proprietor,' the heritors and Presbytery should be entered as holding in trust for the benefice of Kirkmabreck, and that the sum actually paid by the Dock Commissioners should be stated as the value.

It sometimes happens that, in order to escape the House Duty, a L.20 house is let at L.19 odd. If it appears that the sum is the full and fair rent of the premises, it will be entered as the value. (Case 20.) But where the tenant is taken bound to pay, for example, L.19, 5s. of rent, and also to insure the premises, the true rent is the sum stated, plus the cost of insurance; and the property should be so entered. (Case 28.) Where a furnished house is let, a deduction requires to be made from the rent equivalent to the value of the furniture, in order to ascertain the assessable value. (Case 3.)

The interpretation clause says that lands and heritages shall include 'shootings and deer forests where actually let, fishings, woods, copse, and underwood, from which revenue is actually derived. The question at once occurs, What is the meaning of the expression, woods from which revenue is actually derived?' No land is absolutely without value; and does the fact of its being covered with plantation exempt it from assessment altogether? The first case which occurred on this point was of this nature. Mr and Mrs Murray Dunlop of Corsock were inter alia put down by the assessor

for 33 acres of young plantation, of from one to six years' growth, on land partly muir, partly pasture, and to a small extent arable. The woods yielded no revenue, and were not, in their then state, capable of yielding any in the shape of rent or otherwise. The assessor valued them at what they would let as pasture or grazing land, being an average of 6s. 7d. an acre. The proprietors objected, that they were worth nothing, and a kind of property appropriately set forth by its true specific denomination, but subject to a qualification, could not be classed under a more general designation, such as lands, in order to get quit of the qualification. The Commissioners gave effect to this view, but the decision was held to be wrong. (Case 4.)

Suppose, again, that a tenant of a country house, surrounded by woods, has right, 1st, to the shooting, and, 2d, to exclude the agricultural tenant, or any person in right of the proprietor, from pasturing the woods or cutting grass therein. In a case of this kind it was contended that the woods had no value as pasturage; but that, in fact, the agricultural value might be held as included in the sum paid for the privilege of killing the game. The Commissioners disallowed the valuation, on the ground that the proprietor had divested himself of the right to let the ground for pasturage, and the rent paid by the tenant covered the whole produce of the ground. The judges, however, held that the decision was wrong, and upheld the assessor's view, that the Act contemplates two different subjects -the value of the privilege of killing game, and the value of the woods for grazing in their natural state. Both values should enter the Roll. The shooting rent covers no right to the use of the land or its produce, but is an accidental incident of the possession, the worth of which fell to be added to the grazing value of the lands, as in agricultural rents, where not only the rent paid by the farmer is entered, but also the rent paid for the shootings. (Case 31.)

It would appear that the qualifying words in the clause referred to do not apply to fishings. They apply to copse and underwood only. Fishings are, therefore, treated differently from shootings, which require to be 'actually let.' It is difficult to see the ground of this distinction, unless it be that, in the Poor Law Act, fishings are included in lands and heritages, and Parliament were reluctant to take them out of the category to which they had been assigned. It follows that the proprietor of salmon fishings in a river bounding or passing through his property, is not entitled to plead that they

are worthless in respect of their not being let to a tenant at a yearly rent. When they are in the proprietor's hands, they fall to be valued at what they might be expected to let; and so it was determined by the judges, reversing the decision of the local Commissioners, in Case 32.

Such are the more important points settled under this new form of appeal. It is a signal illustration of the excellent working of an appeal on a case stated, which we hope to see soon extended to the Small Debt Court, as a check on irresponsible tyranny and caprice. To show the need of this species of review, we may add, that in the whole 35 cases the determination of the Commissioners was adjudged to be wrong or requiring variation in 18, and to be right in 17.

NOTES IN THE INNER HOUSE.

FIRST DIVISION.

Baird and Others v. The Magistrates of Dundee and Others. IN 1639, Robert Johnston left L.1000 to the 'Provost and Bailies of Dundee, for the yearly maintenance of the aged and impotent people of said town of Dundee.' In 1646, the Provost, Magistrates, and Town Council of Dundee, into whose hands the legacy had de facto come, purchased with part of it the ground called Monorgan's Croft; and they took the title to that and other subjects purchased from said legacy, not in the name of the Provost and Bailies as Johnston's trustees, but in name of themselves and of the Hospital Master of Dundee, 'for the special use, behoof, utilitie, and profit of the poor of the said hospital.' It is admitted that the latter class of poor persons are different from those contemplated by Johnston's will. For more than two centuries, therefore, Johnston's legacy has been misappropriated; and the question raised in the present case is, whether that misappropriation shall now cease, or whether it has lasted so long that the law will support its continuation. The First Division, Lord Deas dissenting, have decided that all right to complain of the misappropriation has been cut off by the negative prescription; and their Lordships further indicated an opinion that the title to Monorgan's Croft has been rendered indefeasible by the positive prescription. The soundness of the judgment seems open to doubt. The way in which the majority of the Court dealt with