1823. The KING v. MOSLEY. chester, and owner of the markets there, and of all the waste lands within the manor. The profits arising from the markets in respect of which he is assessed, are equal to the amount of the assessment. The markets are held three days in each week, in the several places named in the assessment, which are public streets in Manchester, over which the public have a right to pass and re-pass, subject to the holding of the markets, which holding always in a great measure, and sometimes entirely, obstructs the passing and re-passing with carts and horses, The appellant is not an inhabitant of Manchester, nor an occupier of the soil whereon the markets are held, except so far as the facts of this case may constitute him an occupier. The profits received by the appellant are paid to him by the persons using the markets, for the privilege of exposing their commodities to sale there, whether they effect a sale or not; if the commodities pass through several hands in the market, each person exposing them to sale, pays the appellant for that privilege. The baskets, sacks, tubs, and stalls used by such persons, are provided by themselves, and are either carried by hand or laid on the pavement; they are not fixed to the ground. The stalls are of various sizes, and are paid for in pro portion to their size. The payments for the stalls are collected weekly, but those for the baskets, sacks, and tubs, on the day on which they are used, All persons who keep stalls within the town and manor of Manchester, for the exposure of commodities to sale, pay stallage to the appellant; and every person found in the manor exposing to sale any commodity in any basket, tub, cask, or sack, pays toll for the same to the appellant, whether he is stationary, or moving about from one part of the manor to another. The sums paid to the appellant for the privilege of using the market with stalls, have occasionally varied; those paid for baskets, &c. have al ways been the same; respect being had to the quantity and quality of the commodities. There are butcher's shambles in Manchester belonging to the appellant, where the stalls are affixed to the freehold; those stalls are rated separately, in the names of the actual occupiers and renters; but the appellant, by express agreement with them, pays the rates for them. These butcher's stalls are quite distinct from the other stalls above-mentioned. J. Williams and Starkie, in support of the order of Sessions, endeavoured to distinguish this case from Rex v. The Manchester Water-Works Company (a), on the ground that the defendants there had no ownership of, and no interest in, the surface of the ground; whereas here, the defendant was owner of the soil upon which the market stood, and had a direct beneficial interest in the whole of the surface, and in the improvement of the town. They also contended, that as it was clear that these market tolls would be rateable if the act of parliament had used the word "grounds" or "lands," instead of the word " tenements," the Court would, from the object of the statute, and from the relative situation of the word, consider it as equivalent to "lands," in order to give the greatest possible effect to the provisions of the act; and upon this point they cited Co. Litt. 6 a. and 19 b. Rex v. Wickham Market (b), Rex v. Jolliffe (c), Rex v. Macdonald (d), and 2 Nol. P. L. 7. Littledale and Parke, contrà, were stopped by the Court, and PER CURIAM. This case is not distinguishable from Rex v. The Manchester Water-Works Company, so re (a) Ante, vol. i. 479. (b) 3 Keb. 140. 1 Freem. 419. (c) 2 T. R. 90. (d) 12 East, 324. 1823. The KING v. MOSLEY. MACHYNLLETH, in error (a). RROR from the Quarter Sessions for the county W 1823. The KING v. of Machynlleth, are liable to repair the bridge, without describing what part each are separately liable to repair. 3. That it does not aver that the bridge is a common and public bridge. 4. That the inhabitants are not described The as bodies corporate; and 5. That the inhabitants of the of PENEGOES parish, and the township, being in fact separate bodies, were fined in one sum. Sir W. Owen, for the defendants. It does not appear upon this indictment, that any part of the bridge is within the township of Machynlleth, and therefore there is no liability to repair alleged as against the inhabitants of that township. This is clearly irregular; Wentw. Plead. vol. vi. 407, Rex v. St. Pancras (a), and Rex v. Gamlingay (b). The Court stopped him, and called upon Campbell, contrà, upon this point, who contended, that the Court would presume that the township of Machynlleth was within, and part of, the parish of Machynlleth, and then the averment that the parish was liable, would be a sufficient averment that the township was liable also, and that the bridge, being within the parish, was within the township also. The obvious meaning of the averment was, that the bridge was situate within the township, and it was impossible to draw any other inference. PER CURIAM. It is unnecessary to discuss the other points, because it is quite clear that the indictment is defective in not averring that the bridge is situate within the township of Machynlleth. The Court cannot infer any thing in support of an indictment against a defendant; and in this case it might lead to very great injustice, (a) Peake's N. P. C. 219. (b) 3 T. R. 513. INHABITANTS and MACHYN LLETH. DICTMENT against the inhabitants of the extrachial hamlet of Kingmore, in the county of Cumber1, for not repairing a certain part of a certain common ancient king's highway, in the said hamlet, leading Longtown to the village of Stainton, in the said ty. The indictment alleged generally, that the deants "ought to repair and amend the said highway, n and so often as it should be necessary." On not ty pleaded, the defendants were convicted at the Cumund Quarter Sessions, and adjudged by the Court to a fine of 120l. A writ of error being brought in Court upon the said judgment, the error assigned "that it does not appear, nor is it alleged or shewn he indictment, that the inhabitants of the said extraochial hamlet have used, and been accustomed, and ight ought to repair and amend the same road, or in t right, for what cause, by what obligation, or upon t account, the said inhabitants ought to repair and nd the same, &c." Joinder in error. ourtenay, in support of the writ of error, was stopped he Court. |