V 320 M I N U T E S OF E V I D E N C E T A K E N BEFORE THE G. Battersby, Esq the assistant barristers usually try the right to register by one of these three tests : first, some of the assistant barristers inquire, by the oaths of persons ex- 26 June 1838. perieneed in such matters, if the land were at the time of registry out of lease, whether the landlord could then procure from a tenant 10/., over and above the rent which the claimant pays; and in that case, supposing the rent to be 10/., the annual outlay to be 10/., and the county cess to be 1/., the return from the land, communibus annis, must be 30/., in order to give the claimant a franchise ; according to that interpretation, and with that annual return of 30/., the claimant has 9/. in his pocket to spend. That is the construction of the test contended for by the Solicitor- general and Serjeant Greene, who argued before the Judges against the view the majority of the Judges took. The second test is the Judges' test; that is, the assistant barrister tries, by the same descrip- tion of evidence, whether a solvent tenant could afford to pay the claimant 10/. over and above the rent the tenant pays ; and in that case, supposing the rent, as before, to be 10 /., the outlay 10/., and the county cess 1 /., there must be an annual return, communibus annis, of 31 /., in order to give the franchise : there must be 10/. for the original rent, 10/. for the rent the solvent tenant is to pay in addition, 10 /. for the outlay, and 1 /. for the county cess, in order to give the claimant a franchise; and in that case the claimant has a clear sum of 10/. in his pocket to spend. The third test is this : supposing the rent to be, as before, 10/., the annual outlay 10/., and the county cess to be 1/., and supposing the annual return to be 20/.. in that case some of the assistant barristers hold that that man has a beneficial interest, although he is in fact at a loss of 3 /. out of pocket one year with another. Now, Mr. Gibson, if he had any certain standard in his own mind, as to which I do not pretend to say whether he had or had not, but if he had, it was a lower standard than the lowest of these three ; there- fore I conclude, and meant to convey by my answer to the question put to me by the honourable and learned Member, that, in my opinion, Mr. Gibson would register any man who would take the necessary affidavit, and would, in fact, register him, though he did not, in fact, derive out of the land a return equi- valent to the rent. 13908*. Then, in truth, with regard to Mr. Gibson's rule, it seems, in your judgment, to have been an exception to any of the rules which you have ad- verted to ?— There is another test, which I shall describe as Baron Richards' test, different from those other three ; Mr. Gibson's comes nearer to that than any of the others; but I do not mean to assert before the Committee that Mr. Gibson adopted that either. Mr. Baron Richards, in his judgment, which was published I believe with his authority, argued as if the first of the tests which I have stated to the Committee were the true test; but when he comes to carry that into execution, he does not abide by that test; for the way he proceeds is this, so far as I could collect from the newspaper, which is the only report extant of the actual practical carrying out of his doctrines : he took the annual produce of the year preceding the time of the registry; if the claimant by any means showed, upon his oath, that the gross amount of that produce left a balance of 10/. over and above the rent, he left it to the jury to say whether that man had or had not a beneficial interest. Now the practical effect of that is altogether working upon fallacious grounds, for this reason among others, that one year's produce is no criterion at all to ascertain the general value of the land, nor is it any test to show what the value would be for the eight years during which the claimant would be registered; and in order to make Baron Richards' test at all a criterion, he ought to have, as I conceive, the produce of the eight years preceding, and then to have struck an average; because, sup- posing him to be right, or supposing this investigation of the produce of one year to be right, the man coming to register would only have to burn the sur- face of his land the year preceding, which is a common practice, or at least in the King's County is a very general practice, arid he would have double the quantity of produce from his land for one year ; but for the next year he would have less than the common produce of that land. Therefore, I conceive that Baron Richards' test and practice are altogether fallacious, and that a man coming upon the last of the tests I have put, would, in fact, be at a loss instead of a gain. 13909*. Mr. French.] Do you mean to say, after burning his land, the pro- duce will be very good the year it is burning, but the crops, the corn crop for instance, which succeeds, will be deficient ?— I mean to say, the year next suc- ceeding