1823. The KING against The Inhabit ants of BAWBERGH. cause in the indenture the order of the justices was not referred to by the date. Such indenture means the indenture before spoken of. Order of sessions quashed. By the Man ford Police Act, 32 G. 3. c. 69. rates were to be made upon cupiers of all The KING against MOSLEY, Bart. Chester and Sal. UPON an appeal against a rate made on the defendant under the Manchester and Salford police act, 32 G. 3. c. 69., in respect of "market sites, streets, lands, and tenements, at the market-place, Shude-hill, Smithy-door, and at various other streets in Manchester, and the tolls, dues, rates, and profits in respect thereof." The sessions confirmed the rate, subject to the opinion of the Court on the following case. "The assessment and rate appealed against were duly made and allowed according to the requisites of the act. The markets for which the rate was imposed are held in the several houses, shops, cellars, vaults, stables, coachhouses, brewhouses, and other buildings, gardens or garden-grounds, and other tenements situate within the towns of M. and S. respect that the owner places named, which are public streets in Manchester, and the public have a right to pass and repass over the ively:" Held, same, subject to the right of holding the said markets. by the appellant. The appellant is lord of the manor of Manchester, and owner of the markets there, and of all the waste lands within the manor. The emoluments of certain mar kets kept in the streets of M., in which various articles were exposed to sale, by per- received by him are collected by and paid to him, from persons using the said markets and the sites thereof, the sons who paid him for that privilege, but had not any for the privilege of exposing to sale there the commostalls fixed to dities in which they deal. The baskets, sacks, tubs, and the ground, was not the occupier stalls, used by such persons in the said markets, are of a tenement within the meaning of the act; and therefore was not liable to be rated in respect of the profits of such markets.. provided provided by themselves, and are either carried by them, or are placed upon the pavement of the said markets, but are not fastened to the ground. J. Williams and Starkie, in support of the order of sessions, contended that the word tenement, as used in the act in question, was large enough to embrace the subjectmatter of this rate. But the Court said, that the meaning of the word tenement, as used in this act, had been under their consideration on a former occasion; and that they were satisfied that it was intended to be applied to those things only which were ejusdem generis, with those particularly enumerated, and was not intended to be used in the larger sense sometimes given to it; that the subject of the present rate, not being of the same nature as any of the descriptions of property specified in the act, was not liable to be rated; and that the order of sessions confirming the rate must therefore be quashed. Order of sessions quashed. (a) Littledale and Park were to have argued against the rate. 1823. The KING against MOSLEY. (a) See Rex v. Company of Manchester Water Works, ante, vol. i. p. 630. 1823. section of the General Inclosure Act, (41 G.3. c.109.) when complaints are made against public roads set The KING against The Justices of the West By the eighth IN Easter term last, Scarlett obtained a rule for a man-, damus to the justices of the West Riding of Yorkshire, commanding them to enter continuances and hear an appeal under the following circumstances. The com missioner appointed by a private act of parliament, 1 & 2 G. 4. c. 31., "For inclosing lands in the manor of Whitley, in the parish of Kirk-heaton, in the West Riding of the county of York," had, pursuant to the provision contained in the 41 G. 3. c. 109. ss. 8 & 10., set out a private road over the lands directed to be inclosed. An objection having been taken to this road, a meeting was duly holden, according to the directions of the general inclosure act, before the commissioner and a justice of the peace, who, on the 19th of Feb. 1823, road pri- jointly made an order that the said road should be dis out by a commissioner, he and a justice are to hear them, and finally direct. what is to be done; and by the tenth section, private roads are to be set out, subject to the same provisions as are contained in the eighth section respecting public A vate inclosure act, in which the General Inclosure Act allowed. Against this order the parties aggrieved appealed to the next sessions for the West Riding of Yorkshire; but that court refused to hear the appeal, on the gave an appeal ground that they had no jurisdiction, the order above was recited, all cases, (except as to such acts, determinations, mentioned being final. and proceedings of the said commissioner as were by the said recited act, or that act, directed to be final, binding, and conclusive.) The commissioner under that act having set out a private road which was objected to, he and a justice, upon hearing the complaint, ordered that the road should be disallowed: Held, that the appeal against such oder was not taken away, because it was not an order of the commissioner alone, but of him and a justice of peace together; and because the tenth section of the general act does not expressly say that the order of the commissioner shall be final respecting private roads. (a) This and two following cases were heard in the term, but were unavoidably postponed. Littledale 1823. Littledale and Blackburn now shewed cause. The private act, 1 & 2 G. 4. c. 31., gives an appeal in those cases only where the acts of the commissioner are not declared to be final by that or the general inclosure the W. Riding act. (a) Now, the 8th section of the latter statute says, that when complaints are made against public roads set out by a commissioner, he and a justice shall hear them, and finally direct what is to be done. The 10th section enacts, that private roads shall be set out, subject to the same provisions as are contained in the eighth section respecting public roads; the whole of the latter section must therefore be taken to be embodied in the tenth. The proviso at the end of the eighth section. shews clearly that the order of the commissioner and justice was in general to be conclusive; for it provides, that in one particular case, viz. that of stopping up a road through old inclosures, there shall be a right of appeal. That provision would have been quite unnecessary, unless the order would, but for that, have been final. The construction now contended for was put upon this part of the statute by this Court, in (a) The appeal clause referred to was as follows:" And be it further enacted, that if any person or persons shall think himself, herself, or themselves aggrieved by any thing done, or omitted to be done, in pursuance of the said recited act, or of this act, (except as to such acts, determinations, or proceedings of the said commissioner as are by the said recited act, or this, directed to be final, binding, or conclusive; and also except as to such claims, objections, matters, and things as by this act are directed or anthorised to be ascertained, settled, tried, or determined by the verdict of a jury,) he, she, or they may appeal to the general quarter sessions of the peace to be held for the West Riding of the county of York, within four calendar months next after the cause of complaint shall have arisen; and the said court of quarter sessions are hereby authorised to determine such appeal, and to award such costs as to them shall seem reasonable; which determination shall be final and conclusive, and shall not be removed or removable by certiorari, or any other writ or process whatsoever." The KING against The Justices of of YORKSHIRE, 1823. The KING against The Justices of of YORKSHIRE. Rex v. Commissioners of Dean Inclosure. (a) It may be urged that the act gives an appeal, except where the acts of the commissioner are declared to be final; and that the W. Riding this was a joint act of the commissioner and a magistrate. But the act does not state that the commissioner must act alone to be within the exception from the appeal clause; and by the 8th section of the general inclosure act, the commissioner and magistrate together are finally to direct how the roads are to be set out. Besides, the proceeding before the magistrate and commissioner is in the nature of an appeal; and therefore, to hold that the matter may be re-agitated at the sessions, would be giving appeal upon appeal. That could not have been the intention of the legislature; this rule must therefore be discharged. Scarlett, (with whom were Tindal and Alderson,) contrà. The expression in the 8th section of the general inclosure act is, that the magistrate and commissioner shall finally direct what is to be done. It does not say that their order shall be "binding, final, and conclusive," which are the words of the exception in the appeal clause. There is a material distinction between such expressions as was ruled by this Court in the casc of Rex v. Justices of Cumberland. (b) Besides, here the appeal is clearly given by the general words of the appeal clause, and the only question is, whether this case falls within the exception. That ought not to be made out by inference alone, as it would be by the argument on the other side. For it depends on inference mercly, whether the whole of the 8th section of the 41 G. 3. c. 109. be incorporated in the 10th section of that act. (a) 2 M. & S. 80. (b) 1 B. & C. 64. It |