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sometimes the Company pay it for him, and charge him a per centage in addition to his water rate; but the tenant always bears the expense of the pipe within his own premises. The Company have stop cocks in the different streets, to regulate the direction of the water, and in case the consumers do not pay their water rate, the Company may, and sometimes do, withdraw the supply, by cutting off the service pipes. By 32 Geo. 3. (An Act for cleansing, lighting, and watching the streets of Manchester and Salford) certain Commissioners are (by sect. 39,) authorised once in every year to ascertain the sums to be raised by rates or assessments upon the inhabitants, "and to raise such sums by rates or assessments upon all the tenants or occupiers of all messuages, houses, warehouses, shops, cellars, vaults, stables, coach-houses, brew-houses, and other buildings, gardens, garden-ground, and other tenements, situate, standing, lying, and being within the said towns respectively, according to the an-. nual rent or value of the same respectively." In pursuance of this clause, the Company were duly rated in respect of their office and yard in Manchester, in which assessment they have acquiesced; they were also further rated" in respect of your pipes, trunks, apparatus, works, and tenements in the township of Manchester, for and concerning the conveyance and supply of water in that township, and the profits arising therefrom in the same township, 331. 15s." The Company have no property in the township of Manchester, except that specified in the assessment: their reservoirs, engines, and enginehouses being in the township of Beswick. Against this latter assessment the Company appealed. The Sessions were of opinion, that the defendants were, under the above circumstances, to be considered as beneficial occupiers of the pipes, &c. mentioned in the assessment, and confirmed the rate.

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1823.

The KING

v.

MANCHESTER

WATER WORKS.

1823.

The KING

v.

MANCHESTER
WATER
WORKS.

This case was argued before Bayley, J. Holroyd, J. and Best, J., at the Sittings held at Westminster after last Hilary Term.

J. Williams, Starkie, Armstrong, and Courtenay, argued in support of the order of Sessions, and cited Rer v. The Rochdale Water Works (a), Rex v. Macdonald(b), Rex v. Nicholson (c), Rex v. Bell (d), and Rex v. Jolliffe(e).

Coltman argued contrà, and cited 2 Rol. Ab. 57. 1. 7. 12. Com. Dig. tit. Tenement, E. 2. Rex v. Bell. Rer v. Jolliffe. Hollis v. Goldfinch (f). The Duke of Newcastle v. Clark (g). Atkins v. Davis (h). Stanley v. White (i), and Rex v. Bath (k).

The Court took time to consider the case, and the judgment was now delivered by

BAYLEY, J.-The question raised for the opinion of the Court in this case was, whether the Company, in respect of their pipes, trunks, and other apparatus for supplying the towns of Manchester and Salford with water, were liable to the payment of rates, under the 49 Geo. 3. as the occupiers of the water-way; or, in other words, whether their occupation of that water-way was to be deemed a tenement within the meaning of that act. By the 39th section of that act, "the tenants and occupiers of all messuages, houses, warehouses, shops, cellars, vaults, stables, coach-houses, brew-houses, and

(a) 1 M. & S. 634.
(b) 12 East, 324.
(c) Id. 330.

(d) 7 T. R. 598.
(e) 2 T. R. 90.

(f) 2 Dow. & Ry. T. R. S16. (g) 2 J. B. Moore, 666.

(h) Cald. 315.

(i) 14 East, 332.

(k) Id. 609.

other buildings, gardens, garden-ground, and other tenements," are made liable to be rated. It does not adopt the language of the 43 Eliz. c. 2, "land and houses," but it confines itself to the various kinds of property which I have specified; the word "land" is no where to be found, but the word "tenement" is used; and therefore the decisions upon the statute of Elizabeth will not apply to the present case, unless the word "tenement" here used, is to be construed as equivalent to, or comprehended in, the word "land." This is an act "For cleansing, lighting, watching, and regulating the streets, lanes, passages and places within the towns of Manchester and Salford, and for widening and rendering more commodious, several of the said streets," &c. One of the chief objects of the act, therefore, was clearly to provide for the proper security, peace, and accommodation of persons dwelling in and passing along these towns, and the rate is to be made upon those persons, namely, upon "the tenants or occupiers of any messuage," &c. there situate. It is observable, that wherever the word "tenement" occurs in the act, it is invariably associated with some other term denoting a building of some kind or other. In the 39th section, which directs the Commissioners to ascertain the sums to be raised by rates or assessments, and enumerates and describes the persons upon whom these rates are to be made, the word "tenement" occurs; but in what connexion? "Other buildings, gardens, or garden-ground, and other tenements." By the 40th section, the demand of the rate is to be left at "the dwelling-house or tenement" occupied by the person rated. The 41st section recites, that " several messuages, dwelling-houses, &c. in the town, are let out in lodgings and tenements to different tenants," and provides, that "every such messuage and dwelling-house, or tenement," shall be liable to a rate. These are the principal

1823.

The KING

v.

MANCHESTER
WATER
WORKS.

1823.

The KING

v.

MANCHESTER
WATER
WORKS.

instances in which the word "tenement" is used in the course of the act, and from these instances, considering the manifest object of the act, and the association in which we find this word, we are to consider in what sense the Legislature intended to use it, and how it ought properly to be applied. The constant omission of the general and obvious word "land," and the introduction of the terms "gardens or garden-ground," clearly imply that land in general was not intended to be made the subject of the rate. The object of the act was to give protection and security to the inhabitants in their persons and their property; and therefore houses, and any species of property appertaining to residency and to trade, are carefully enumerated, and are reasonably made the subjects of the rate, because they partake of the benefit afforded. But why were gardens and garden-ground to be included, if land in general was not? For this very sensible reason: garden-grounds in the immediate vicinity of a large and populous town are an extremely valuable species of property, and are also extremely open to depredation and injury, and the improvement in lighting and watching these towns would be the means of affording very important protection to property of that nature in their neighbourhood, and would therefore properly render such property the subject of charge. Gardens and garden-grounds, therefore, with reference to this Act of Parliament, are properly distinguishable from land; while land in general, and particularly pasture land, and other species of real property, such as are included under that general denomination, are as properly comprehended in the statute of Elizabeth, as affording large incomes to the proprietors, and consequently supplying the means of contribution towards the public expenditure. But these latter kinds of landed property are omitted in this Act of Parliament, because they can derive no important protection or equi

valent advantage from the improvements which it is the object of the act to effect. We are therefore of opinion, that the word " tenement," as used in this statute, is not equivalent to the word "land" in the statute of Elizabeth, and that the property in question is not a "tenement" within the plain and fair meaning of the Legislature in this statute, and consequently is not liable to the payment of this rate. For these reasons we think that the order of Sessions confirming the rate upon the defendants, must be quashed,

Order of Sessions quashed.

1823.

The KING

v.

MANCHESTER

WATER
WORKS.

The KING v. The JUSTICES of the HUNDRED of

CASHIOBURY.

remove pro

BROUGHAM moved for a certiorari to remove a A certiorari conviction under the stat. 5 Anne, for killing game, for always lies to the purpose of having it quashed for insufficiency, there ceedingsunder being no appeal given by the statute to the Sessions. He admitted that the objection was not apparent upon the

penal statutes, unless it is expressly taken away; and an lies unless it is expressly given by the statute

face of the conviction, but arose upon the form of the appeal never information. Upon which

The COURT said, on the authority of Rex v. Liston (a), that unless the objection appeared on the face of the conviction itself, no notice could be taken of it. referring generally to penal statutes, they observed this was the governing principle with respect to the writ

And

This Court

will not take notice of any

formal defect

in the proceedings under a that penal statute,

unless it ap

pears on the

of certiorari, and the right of appealing to the Sessions, face of the

conviction

namely, that the certiorari always lies, unless it is ex- itself. pressly taken away, and an appeal never lies, unless

(a) 5 T. R. 338.

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