imposed as an annual tax in the time of William and Mary, and by several successive acts of parliament to have been continued. Those acts imposed, not only the tax now known as the land-tax, but also a tax on personal property and salaries, somewhat analogous to the present income and property tax, and from the time of the 4 & 5 W. & M. they contained a clause exempting hospitals from its operation in somewhat similar terms to that hereafter referred to. These annual acts appear to have been passed in much the same terms, until 1798, the date of the 38 Geo. 3. c. 5, the last annual act. The 25th section of that act provides that nothing in the act shall extend to charge any college or hall in either of the two universities of Oxford and Cambridge, or certain colleges named, or the corporation of the Sons of the Clergy, or the College of Bromley, "or any hospital in England, Wales or Berwick-upon-Tweed, for or in respect of the scites of the said colleges, halls or hospitals, or any of the buildings within the walls or limits thereof." The section then proceeds to provide for the exemption of persons connected with such institutions from the tax on their salaries, and also for the exemption of land which in 1693, the date of the act 4 & 5 W. & M., had formed part of the site of any college, or of certain specified institutions, and also that the act should not charge "any other hospitals or almshouses" in respect of lands the rents of which in 1693 had been applicable solely to the relief of the inmates.

Now, the first question that arises is, whether if this asylum had been in existence at the time of the passing of this act, the trustees could have claimed exemption. It is objected that they are not incorporated, and that there can be no hospital without incorporation, and no doubt the old authorities tend to shew that an hospital must be incorporated. But they shew something more, for Lord Coke says, in the case of Sutton's Hospital (5), that there is no legal hospital except where the poor persons benefited are themselves incorporated; and he says that where the corporate succession is vested in trustees to effectuate

(5) 10 Rep. 1.

the purposes of the institution, that is no legal hospital. It seems, however, tolerably clear that a legal hospital, in that sense, is not meant when the word "hospital" is used in this section, for towards the end of the section the words "other hospitals," follow the names of some particular hospitals, some of which seem not to be incorporated in such a manner as to make them legal hospitals under this definition. If, then, we understand that the word "hospital" in the section does not mean strictly a legal hospital, is there any reason for supposing that there need be any incorporation at all? It seems rather more reasonable to hold that the word is used in a popular sense only, and that any institution which, though not in a strictly legal, might in a popular sense be called an hospital, might claim exemption. But some doubts arise whether even upon this view this institution would be an hospital, by which word we understand rather an institution for the relief of the sick or aged than for the maintenance and education of children. We do not speak of an hospital for orphans. But upon the whole we are inclined to think that if this institution had been in existence at the time of the passing of the act 38 Geo. 3. c. 5, it might have claimed exemption.

This point is certainly not so clear as to make it unnecessary to consider the position of a subsequently-founded hospital of that character and the course of subsequent legislation. In the same session of 38 Geo. 3. was passed another act, c. 60, which enacted that the sums charged by the previous act, c. 5, on counties, towns and places in respect of lands within the same, to be raised, levied and paid within a year, should be raised, levied and paid yearly for ever, and that the several powers, provisions, clauses, &c. of the former act, except as in the second act altered or varied, should be in full force as if repeated and re-enacted in that act, but that all this should be subject to redemption as therein provided. By subsequent statutes the provisions for redemption were from time to time altered, repealed, re-enacted, and consolidated; but the scheme remained the same, and the alterations were principally of the machinery and regulations for carrying it into effect. Now, one object of the legislature in pass

ing the act was to support the public credit by imposing a fixed charge on land, on the strength of which money could be borrowed, and to relieve the country of a portion of the existing debt on advantageous terms. Provision was made for redemption of the tax by transferring to the Commissioners for the reduction of the national debt a sum in consols, the income of which should exceed by one-tenth the tax to be redeemed. At this time the funds were greatly depreciated, as compared with other securities, and especially with land. A permanent charge of 10. a year upon land would therefore be of greater value in the market than a sum producing 117. a year in the funds. It would therefore, if the then imposed tax was to be permanent, be to the interest of landowners to redeem, and upon their doing so the revenue would be benefited to the extent of one-tenth of the tax redeemed. It was therefore the policy of the legislature to encourage redemption. That this was so we see from the extensive powers given to persons having a limited interest only to raise money to redeem the tax, from other inducements held out to landowners to redeem, and from the fact that upon refusal of the owners, third persons might purchase the tax, retaining it as a charge payable to themselves. But no one would have redeemed the tax unless it had been made a permanent charge upon the land, not likely ever to be much less in amount and not to be got rid of except by redemption. If that were the case the redemption would necessarily increase the market value of the land, and would do so as we have shewn to a greater extent than the sum required to be expended in the redemption. If, however, the land was to be liable to the tax in the hands of one purchaser, but not of another, the value of the land to sell would not be increased in proportion to the outlay for redemption. To carry out the policy of the act, therefore, we should expect to find that no new or shifting exemptions could arise or come into effect after the tax became permanent. The effect of the acts on several points was explained in The Queen v. the Land Tax Commissioners (6). Upon each district separately assessed a (6) 2 El. & B. 694; s. c. 22 Law J. Rep. (N.S.) Q.B. 211.

fixed quota was to be charged. That was not to be altered, although before levy the amount of tax redeemed within the district was to be deducted and the remainder only levied. This was to be levied on the lands not exonerated by redemption. These lands were to be assessed yearly by an equal pound-rate, sufficient to produce the required amount. We see, therefore, from this, in the first place, that the amount of tax payable in any particular portion of land would increase or decrease not according as the value of land increased or decreased absolutely, but according as it increased or decreased relatively to the other lands in the district not exonerated; and as any owner who was about to improve his land to such an extent as to have any effect on the rest of the district might be expected first to redeem the tax, no person could ever expect that the amount of tax upon his land would ever be sensibly diminished, although he would know that if he improved without taking the precaution of redeeming, the tax would be increased. We see, then, that this inducement for redemption, viz., that no loss was likely to be incurred, was actually held out by the legislature. In the next place, we see that if any portion of land chargeable with tax came into the hands of a proprietor having a valid claim of exemption, a greater burden would be thrown upon the remainder of the district, for the amount to be raised would be the same as before, and the land on which it was to be charged less. This of itself is a strong argument for supposing that all exemptions must attach at the time these quotas were thus permanently fixed, and must in all changes of ownership follow the land and not the proprietor. As long as the tax was imposed annually, although the legislature, in fact, imposed the same quota in each district as they had done before, it must be taken that this was done deliberately and after consideration of all the changes that had taken place in the ownership of property since the last act. We find in two cases arising under the temporary acts, viz., Harrison v. Bulcock (2) and All Souls College v. Costa (1), that it has been held, with respect to additions to hospitals and colleges which had been made since exemption was first given, but before the act

imposing the tax under which the assessment complained of was made, that such additions were exempt. The distinction between those two cases and the present was noticed in one of them, the All Souls College case (1), by the Chief Justice of the Common Pleas, Lord Alvanley, who says, that with respect to colleges founded since the land-tax was made perpetual, he would say nothing. The inference we are disposed to draw from what was said in that case seems to us to be, that the important thing to see in construing the exemption is, whether or not the land was within the exemption at the time of the passing of the act imposing the tax on all land. In that case it was, in the present it was not. Considering, therefore, the hardship on other proprietors in the district, which would be caused by shifting exemptions coming into operation on a change of ownership, together with the evident policy of the act to make the charge on lands a permanent one, with a view to encourage its redemption for the benefit of the revenue, we think we should hold that there can be no exemption in case of lands not exempt when the tax was made permanent. The same conclusion would, we think, necessarily be drawn from a strict construction of the words of the exemption; for "any hospital" must mean "any existing hospital."

Then, the further question arises, whether this asylum is exempt as Crown land; but to this we think the same reasoning will apply. There is, indeed, very great doubt whether, supposing this asylum to have been in existence in 1798, it would have been exempt on this ground, viz., as Crown land. It is true that the Commissioners were appointed by the Crown, and, to some extent, for public purposes; but it was mainly to administer funds contributed for a particular purpose by individuals, and all taxes or other imposts charged upon them would be payable from these funds, and not from the public purse. But however that may be, we think that these lands, having been chargeable with land-tax when belonging to Lord Spencer, as we presume to have been the case, although it is not distinctly stated, would be chargeable still in the hands of the Crown, if directly purchased for the Crown. The case quoted to shew that Crown lands are not chargeable

with land-tax, The Attorney General v. Hill (3), seems to us to favour this view rather than the contrary; for it is distinctly found in the case (at page 163) that the assessment complained of on Deptford Dockyard was for land which had formed part of the dockyard when the land-tax was made perpetual. This shews that, in the opinion of the late Mr. Justice Wightman, who was then counsel for the Crown, it was a material point in order to make out the exemp tion. It may be observed that the effect of holding that the Crown must pay the landtax chargeable on land which they may purchase, is not really to tax the Crown, but merely to make the Crown pay the market-price for land purchased. If the tax had been previously redeemed, of course the purchase-money would have been larger, and the difference between the money in the two cases would be gained by the Crown at the expense of the other proprietors of the district, not at the expense of the public revenue, whenever lands were purchased on which the tax had not been redeemed, if the exemption claimed were to be allowed. If there were any provisions for reducing the amount of the tax to be levied on the district, of course the case would be different. There may be some difficulty in enforcing payment against the Crown, and we do not say that all, or even any, of the remedies provided for ordinary cases, could be resorted to. We do not, however, think that this shews that the lands would not be still chargeable, or that an assessment, in which part of the quota to be levied on the district was assessed on Crown lands, chargeable before they became Crown lands, would not be a good one. For these reasons, we think our judgment should be for the defendant.

Judgment for the defendant.

Attornies-Sweeting & Lydall, for plaintiffs; Batt & Son, for defendants.

Sheriff-Negligence in conducting Sale -Interference of Debtor-Special Bailiff.

The sale of goods under a fi. fa. having been fixed for the 26th of July, the sheriff's officer, at the request of the debtor, delayed issuing advertisements till the 25th. On that day a further delay of some hours was granted at the request of the debtor's attorney, who ultimately instructed the officer to go on and sell, at the same time under another writ which had been delivered to the officer during the day. The goods were thereupon sold together without being lotted, at a considerable loss: Held, that the interference of the debtor did not make the officer his agent, and that the sheriff was not relieved from his liability in respect of the negligent conduct of his officer in conducting the sale.

This action was brought by the assignee of Joseph Outram, a bankrupt, against the sheriff of Staffordshire, for negligence in executing a fi fa. against the bankrupt's goods.

The first count of the declaration alleged that a fi. fa. issued out of the Court of Common Pleas to the defendant (the sheriff of Staffordshire) against the goods of Joseph Outram, indorsed for 1637. 18s. 4d. (the sum recovered against him in an action in the said Court), and that the defendant accordingly took divers goods of the said Joseph Outram of far greater value than sufficient to satisfy the writ; yet that the defendant, although the said execution was brought for the recovery of a debt, &c., exceeding 501., unlawfully, wrongfully, injuriously and negligently sold by auction the said goods without publicly advertising the sale thereof on or during the three days next preceding the day of sale (1), and wrongfully, &c. sold the said goods for a small, inadequate and insufficient price, and

(1) The 74th section of the Bankruptcy Act, 1861, is as follows: "Wherever the goods and chattels of a debtor are sold under an execution upon any judgment recovered in any action or suit brought for the recovery of a debt, money demand, or damages against any debtor exceeding 501., such NEW SERIES, 35.-EXCHEQ

for much less than the reasonable price and value, and without taking due and reasonable care in and about the advertising and giving notice, and without giving due and sufficient notice thereof, and negligently and improperly conducted himself in and about the conduct and management of the sale, and wrongfully, &c., converted to his own use a great part of the said goods and of the proceeds of the sale; and by reason of the premises the sale of the goods realized a much less sum than it would otherwise have done, and the plaintiff, as Outram's assignee, was deprived of and lost a great part of the bankrupt's estate and effects.

The second, third and fourth counts were similar to the first, and related to other writs issued in other actions against the bankrupt. The fifth count alleged a delivery of all these writs to the sheriff, seizure by him thereunder, and negligence in the execution thereof. There were also counts in trover, and money counts.

Pleas-not guilty; leave and licence; a denial of Outram's property in the goods; and to the money counts, never indebted. Issue on all the pleas.

The action was tried before Montague Smith, J., at the Gloucester Spring Assizes, 1866, when the following facts appeared in evidence.

A fi. fa. was levied against Outram's goods on the 20th of July, under three of the writs mentioned in the declaration, and the sheriff's officer fixed the sale for the 26th. In consequence, however, of Outram having requested the officer not to issue any advertisements of the sale till an attempt had been made to raise money, no advertisement was published before the 25th of July. On the morning of the 26th the officer proceeded to lot the goods for sale, but again postponed the sale for some hours on the application of Outram's attorney. Later in the day the attorney told the officer that no money was forthcoming, and that he could go on with the sale. In the mean time, the other writ mentioned in

goods and chattels shall in all cases, unless the Court shall otherwise direct, be sold by the sheriff by public auction, and not by bill of sale or private contract, and such sale shall be publicly advertised by the sheriff on and during three days next preceding the day of sale."

2 E

the declaration had been delivered to the officer, and upon his telling the attorney that he could not sell under that writ without Outram's authority, the attorney authorized him to sell under all four writs

at once. The goods were thereupon all sold together, and fetched 4301., which was shewn to be very much less than their real value.

The sale also was proved to have been hurried, and otherwise negligently conducted.

Outram was adjudicated a bankrupt on his own petition on the 1st of August, and the plaintiff was appointed assignee.

The jury found that the advertisement of the sale had been postponed by Outram's interference, but that the defendant had not taken due care about the sale. They gave the plaintiff 1507. on the counts for negligence, and 157. on the money

counts.

J. O. Griffits (pursuant to leave reserved) obtained a rule for a nonsuit, or to reduce the damages, on the ground that the defendant was not liable, because the bankrupt had by his own acts disentitled himself from suing the sheriff; or that if he could do so, it would only be in respect of the sheriff's overcharges for fees.

Huddleston and H. James shewed cause. -An execution debtor occupies a very different position with regard to the sheriff from that occupied by an execution creditor. The creditor may say, "I will have an officer of my own;" but the debtor cannot appoint a special bailiff, and has no right to interfere at all. Besides, the interference that took place in this case extended only to the delay in advertising; and, if it amounted to any contract at all to relieve the sheriff from liability, it certainly did not extend to the subsequent negligence of the officer in carrying out the sale; and it is in respect of that particular negligence that the jury have given the plaintiff 150. Until the execution was satisfied, the sheriff remained liable; he could not divest himself of his official and ministerial character; even the appointment of a special bailiff would not relieve him from the subsequent liabilityTaylor v. Richardson (2). Even where the officer is authorized by the debtor to sell

(2) 8 Term Rep. 505.

more goods than are necessary to satisfy the writ, the sheriff must be identified with his officer to the extent of the sum to be levied Cook v. Palmer (3), per Bayley, J. Here the officer, after granting an indul gence to the debtor, which is by no means unusual, went on with the sale under the writ, and the sheriff is therefore responsible for the whole. Again, the assignee is not in this case estopped by the bankrupt's acts -Bankruptcy Act, 1861, ss. 73, 74.

Mellish and J. O. Griffits, in support of the rule. The questions are, first, could the bankrupt himself have maintained this action? and, secondly, can his assignee do so? First, then, the bankrupt here made the bailiff his own agent. When an execution creditor appoints a special bailiff who sells negligently, no doubt the sheriff is still answerable to the debtor, though not to the creditor; and so the converse may be equally true; that is, the execution debtor may have interfered so that he cannot sue the sheriff, though at the same time the sheriff is not thereby released quoad the creditors. Here the two heads of negligence are so mixed up that they must both be regarded as the consequence of the debtor's original interference; they cannot be separated merely because of the peculiar finding of the jury. Far less interference on the part of the creditor would have discharged the sheriff-Ford v. Leche (4).

[MARTIN, B.-"Leave and licence" does not extend beyond that for which it was given. The sheriff's authority to sell was still under the writ. The title of the buyer was under the writ.]

So it would be in the case of a special bailiff. The execution debtor can put himself in the same position in several respects as the execution creditor; for instance, they can both rule the sheriff to return the writ; and as the direction of the creditor's attorney would have been sufficient to constitute the officer the agent of the creditor, and would have disentitled the creditor from ruling the sheriff-Porter v. Viner (5), so by analogy the same reason is equally

(3) 6 B. & C. 739.

(4) 6 Ad. & E. 699; s. c. 6 Law J. Rep. (N.S.) K.B. 150.

(5) 1 Chit. Rep. 613. See also 1 Chitty's Archbold, (10th edit.) pp. 16, 587, and cases there cited.