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1824.

The KING

v.

The

COMPANY.

fourths, or any part of its value, after making deductions of the same nature which have been made in the case of the company, the company ought to be charged in the same proportion. If other real property is charged HULL DOCK according to the rack rent actually paid by the occupier, and according to a rent so estimated where the occupier is not a tenant, at such rent there will even in those cases be a virtual allowance in respect of the poor rate, such a rent being in reality a part only of the worth or value of the land. The whole worth or value is made up of what is paid in rent, and what in rates and other outgoings. Land intrinsically worth forty pounds a year can only pay a rent of thirty pounds, if it is to pay 101. per annum in other ways; and in estimating a rent, both landlord and tenant look to the value of the thing on the one hand, and to the outgoings on the other, and the outgoings must be deducted from the value before the rent can properly be fixed. Whenever, therefore, the rate is according to the rent, which is generally the case, an allowance is virtually made for the poor rate; and if this rate is made according to the rent the company should have that allowance. The mode of estimating the allowance is a véry different thing. That which is suggested in the case is clearly wrong, for if 192257., the present rate, is deducted from the 89007., the rate upon 66757. only will have part of the rateable proportion of 89007. free from rate. The allowance must be so made that the sum upon which the annual rates are made may with the amount of the rates make up the 89007. This sum, according to the present rate, will be 7120/. and the sum to be paid by the company will be 1780. The process of calculation must be adapted to the amount of the rate. It is sufficient for us to propound the rule, leaving the process of calculation to others. Upon the whole, therefore, all the persons

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1824.

The KING

The

HULL DOCK
COMPANY.

A

omitted, except the lessee of houses underlet by him, must be put upon the rate; the rate payable by the Dock Company must be reduced to 17807, and the case must be sent down to the sessions, that they may introduce the proper sums if they find it practicable, or that they may quash the rate if it be not.

Order of sessions quashed.

Saturday, 27th Nov. Where a Judge at the assizes refused to try an in

dictment for a

The KING V. TREMAINE.

ON the last Western Circuit the defendant had been indicted on the crown side for a misdemeanor. When the case was called on for trial, Garrow, B. refused to misdemeanor, try it, the indictment being manifestly defective in form, manifestly bad but the learned Judge did not order it to be quashed. on the face of it, but did not The prosecutor then preferred a second indictment for order it to be the same alleged offence, and having removed it into this quashed, and

the prosecutor Court by certiorari,

preferred ano.
ther indict-
ment for the
same offence,
and removed
it into K. B,
the Court
would not
call upon
pro

the

the costs of

the first pro

secution, before he pith

Carter now moved for a rule, calling on the pro

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secutor to shew cause why he should not pay the des fendant his costs incurred by the first prosecution, before he was permitted to proceed with the second. It is au established rule in this Court, that where a first indicts secutor to pay ment is quashed the Court will not allow the prosecutor to prefer a second for the same offence, but on the condition of paying the costs of the first. Here, uns doubtedly the first indictment was not quashed, and it still remained on the file, but as the learned Judge had refused to try it because it was so defective that it could not be supported for a moment, the case comes within the spirit of the rule, where the first indictment is int fact quashed. No express decision can be found on the point.

ceeded

the second.

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ABBOTT, C. J.-Unless some instance can be found in which such an application has been granted under 'similar circumstances, I think we ought not to establish

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PER CUR.

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Rule refused.

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The KING v. TUCKER.

Monday, November 29.

a sunimary

against the hundred, for to property by injuries done riotous assemblies, on application to the Petty Sessions

BARNARD, on a former day in this Term, obtained The 3 Geo. 4. a rule calling upon the defendant to shew cause why a c.33.5.2. gives writ of mandamus, issued in Easter Term last, directed remedy, to the to the Justices of the county of Somerset, commanding extent of 50%. them to hear an appeal against the decision of the Special Petty Sessions for the hundred of Winterstoke, upon an application made by Tucker for a compensation in damages under the 3 Geo. 4. c. 33. should not be quashed, quia improvidè emanavit. The case disclosed on affidavits was this:-On the 4th November, 1823, two ricks of corn, the property of Mr. Tucker, were wilfully consumed by fire in the hundred of Winterstoke, by some person or persons unknown. The value of the ricks was estimated at 304, and in consequence of this injury he proceeded under the statute 3 Geo. 4. c. 33. (a), an act entitled "An Act for altering and amending several acts passed in the

1

1

in the manner

therein prescribed; and by s. 7. an appeal lies to the Quarter Sessions when

persons are aggrieved by any thing done in pursuance

of the act. 3 Where the Petty Sessions, under a mistake of the law, and not upon the

(a) By sect. 2. of which it is enacted, "That where the loss, injury or damage, claimed or alleged to have been sustained, shall not exceed in amount the sum of 30l., it shall and may be lawful for the party or parties damnified or injured, and he, she, and they, are hereby directed, within one calendar month next after such damage or injury merits of the shall have been sustained, to give notice in writing to the high con- case, dismissed stable of the hundred, &c. in which such loss, injury, or damage, an application shall have been suffered or sustained, of such riotous or tumultuous under this

statute:

Held, that the Quarter Sessions might entertain an appeal against their determination. Service of a rule nisi for a mandamus to the Sessions to hear an appeal against the determination of the Petty Sessions, need not be upon the clerk of the peace; it is sufficient if it be served on the Justices whose decision is complained against.

1824.

The KING

บ.

TUCKER

first and ninth years of the reign of King George the First, and in the forty-first, fifty-second, fifty-sixth, and fifty-seventh years of the reign of his late Majesty, King George the Third, so far as the same relate to the recovery of damages committed by riotous and tumultuous assemblies and unlawful and malicious offenders;" and gave the notice to the high constable thereby required, and, in pursuance of such notice, on the 9th December following, a Special Petty Session was holden by three justices acting for the hundred of Winterstoke, to hear and determine his complaint. After hearing the circumstances under which the fire took place, the justices, conceiving that it was necessary to prove that the persons who committed the injury were engaged in a riot or tumultuous assembly, or that they were armed with swords, firearms, or other offensive weapons, or had their faces blacked, or were otherwise disguised, and no such proof being given, dismissed the complaint. Whereupon Mr. Tucker, in pursuance of the 7th (a) section of

assembly having taken place, and the nature and amount of the loss, injury, or damage sustained, and of his, her, and their intention of calling upon the inhabitants of such hundred, &c. to make good such loss, injury, or damage; and the said high constable is forthwith to give notice in writing thereof to the magistrates residing in or acting for such hundred, &c., who shall thereupon appoint a Special Petty Session, to be holden within thirty days next after the receipt of such notice, of all the magistrates residing in or acting for such hundred, &c. to hear and determine of any complaint which may be then and there brought before them for or on account of any such damage or injury having been sustained by or through the means aforesaid; and the party or parties so damnified and injured, is, and are, hereby directed to give notice, or cause a notice in writing to be placed on the church or chapel doors, or most conspicuous place, of the parish, township, or place, in which such loss, injury, or damage, shall have been sustained, on two successive Sundays next preceding the day of holding such Petty Session, of the intent and purpose for which such Special Petty Session is to be held."

(a) By which it is enacted, "That if any person or persons in England shall think himself, herself, or themselves, aggrieved by any

the statute, entered an appeal at the Epiphany General
Quarter Sessions holden for the county on the 12th-
January following. When the appeal came on to be
heard, the Justices refused to entertain it, on the ground
that nothing had been done by the Petty Sessions, in pur-
suance of the act, against which an appeal would lie, so
as to give the Quarter Sessions jurisdiction, and therefore
the appeal was dismissed. In Easter Term Mr. Tucker
obtained a rule calling upon the Somersetshire Justices
to shew cause why a mandamus should not issue com-
manding them to hear the appeal, upon notice of that
rule to be given to the said Justices or some of them.
On the last day of Easter Term the rule was made abso-
lute, on an affidavit of service upon those Justices alone
who had originally heard the complaint at the Special
Petty Sessions, and upon the high constable of the hun-
dred, and no cause being shewn, a mandamus was ordered
to go,
and the writ was served upon the same Justices
only. When the appeal was presented for hearing at
the Midsummer Quarter Sessions, the Justices then
assembled refused to hear it, on an objection taken by
the respondents' counsel that the rule nisi for the manda-
mus had been improperly served, not having been served
upon more of the county Justices. Now, on shewing
cause against the rule for quashing the writ of mandamus
on the ground that it had been improvidently issued, two
questions were raised; first, whether the General Quarter
Sessions had jurisdiction to entertain an appeal under the
3 Geo. 4. c. 33. where the Petty Sessions had done
nothing in pursuance of that act; and, second, whether
the rule nisi for the mandamus had been properly served.

C. F. Williams shewed cause. It is clear that the

thing done in pursuance of this act, such person or persons may appeal to the Justices of the Peace at their next General Quarter Sessions of the Peace to be holden for such county."

1824.

The KING

v.

TUCKER.

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