April 24, 1869. THE QUEEN v. TAYLOR. [1 C. C. R. 194.] Misdemeanour necessarily including lesser Misdemeanour-Indictment for "unlawfully and maliciously wounding "and for "unlawfully and maliciously inflicting grievous bodily harm."-Verdict "Guilty of an Assault." An indictment charged the prisoner in the first count with "unlawfully and maliciously wounding," and in the second count, with "unlawfully and maliciously inflicting grievous bodily harm.” The jury found the prisoner guilty of an assault: Held, that the prisoner could be properly convicted of an assault on the indictment, as the offences charged were misdemeanours, and each of them necessarily included the lesser misdemeanour of an assault. CASE stated by the Chairman of the Quarter Sessions for the North Riding of Yorkshire: The prisoner was indicted at the Easter general quarter sessions, 1869, of the North Riding of Yorkshire, for a misdemeanour upon an indictment, the first count of which charged that he "unlawfully and maliciously did wound one Thomas Meek." The second count charged that he "did unlawfully and maliciously inflict grievous bodily harm upon the said Thomas Meek." The jury returned a verdict of "guilty of an assault." The counsel for the prisoner contended that the prisoner could not be convicted of a common assault on that indictment, and that the verdict therefore amounted to an acquittal. The Court postponed judgment, and reserved the question, Whether this conviction can be sustained? The prisoner was admitted to bail. The case was argued before Kelly, C.B., Byles, Lush, and Brett, JJ., and Cleasby, B. Shepherd, for the prosecution. The question is, whether there should have been a count for the assault, or the word " assault" in one of the counts. The offences charged are only misdemeanours, and each of them necessarily includes the lesser misdemeanour of a common assault. A verdict for a common assault can, therefore, properly be given on this indictment. The rules relating to felonies do not apply in this case, which concerns misdemeanours only. In Reg. v. Oliver (Bell, C. C. 287; 30 L. J. (M.C.) 12), a conviction of a common assault was upheld upon an indictment that the prisoner did "make an assault upon, and did unlawfully beat, wound, and ill-treat, and did thereby occasion actual bodily harm" to the prosecutor. The same point was decided in Reg. v. Feadon (Leigh & Cave, 81; 31 L. J. (M.C.) 70). These cases do not go quite so far as the present one, because the word "assault" was used in the indictments, but the principle applies to this case as it is not necessary to use the word "assault." Every battery includes an assault (1 Hawk. P. C. (8th ed.) p. 110), and therefore wounding or inflicting grievous bodily harm necessarily includes an assault: Reg v. Ingram (1 Salk. 384). No counsel appeared for the prisoner. KELLY, C.B. This conviction must be affirmed. There is no count in the indictment for an assault, nor is the word " assault" used in the indictment. Each of the two counts is, however, for an offence which necessarily includes an assault, and the offences charged as well as the offence of which the prisoner has been found guilty are misdemeanours. If there were an absence of authority, we think on principle that the jury could properly find a verdict of guilty of a common assault on this indictment. It is not necessary that matters of aggravation stated in the indictment should be proved, and if not proved the prisoner may be found guilty of the offence without the circumstances of aggravation. There is, however, no want of authority. In Reg v. Yeadon (Leigh & Cave, 81; 31 L. J. (M.C.) 70), there was an indictment containing a count for an assault occasioning actual bodily harm, under 14 & 15 Vict. c. 100, s. 29. The jury found a verdict of guilty of a common assault. The chairman of the quarter sessions declined to receive it, and it was held that this amounted substantially to a misdirection, as the verdict was legal, and he was bound to receive it. In that case the word "assault" was used in the indictment, but coupled with circumstances of aggravation. Nothing, however, turned on the use of the word "assault." The effect of the verdict was held to be to find the prisoner guilty of the offence charged, but without the additional circumstances of aggravation stated in the indictment. That principle applies to this case. On an indictment for a misdemeanour the jury may find the prisoner guilty of any lesser misdemeanour that is necessarily included in the offence as charged. Conviction affirmed. Attorneys for prosecution: Van Sandau & Sons, for Belk, Middlesborough. May 1, 1869. THE QUEEN v. LUMLEY. [1 C. C. R. 196.] Presumption-Continuance of Life - Bigamy Absence for less than Seven Years. On a trial for bigamy, it was proved that the prisoner married A. in 1836, left him in 1843, and married again in 1847. Nothing was heard of A. after the prisoner left him, nor was any evidence given of his age:— Held, that there was no presumption of law either in favour of or against the continuance of A's life up to 1847; but that it was a question for the jury, as a matter of fact, whether or not A. was alive at the date of the second marriage. CASE stated by Lush, J. : The prisoner was tried before me at the last sittings of the Central Criminal Court, and convicted of bigamy. The prisoner married one Victor, at St. Helier's, in the island of Jersey, in the year 1836, and lived with him in England until the middle of the year 1843, when they separated, and she was taken by her parents back to Jersey, where she resumed her maiden name. On the 9th of July, 1847, she, describing herself as a spinster, married Captain Lumley, with whom she lived till March, 1864. Nothing was heard of Victor from the time the prisoner left him in 1843. No evidence was given of the age of Victor, nor any of the age of the prisoner, except that a witness, who stated she was forty-eight years old, said that the prisoner was her senior. I directed the jury that, there being no circumstances leading to any reasonable inference that he had died, Victor must be presumed to have been living at the date of the second marriage. Whether that direction was right or not, is the question I reserved for the opinion of the Court. (1) I admitted the prisoner to bail. The case was argued before Kelly, C.B., Byles, Lush, and Brett, JJ., and Cleasby, B. April 24. D. Keane, Q.C. (Collins with him), for the prisoner. The direction is wrong, because it withdraws from the jury the question whether or not Victor was alive at the date of the second marriage. This should have been left to the jury as an ordinary matter of fact: Rex v. Harborne (2 A. & E. 540); Lapsley v. Grierson (1 H. L. C. 498). It is admitted that there is no presumption of the death of a person until seven years after he has last been heard of, and that after that (1) Two other questions were also reserved as to the admissibility of certain evidence in proof of the first marriage. The decision of the Court was, however, given on the question above stated alone, and the other questions were not argued. time he is presumed to be dead. There is, however, no presumption as to the date of his death: Nepean v. Doe d. Knight (2 M. & W. 894, 914; 2 Sm. L. C., 6th ed. 510); and therefore no presumption of continuance of life during the seven years. On this point there is no presumption of law at all. Even if there is a presumption of continuance of life, it is rebutted in a case like this by the conflicting presumption of innocence: Best on Evidence, 4th ed. p. 44-69; Rex v. Twyning (2 B. & Áld. 386); Lapsley v. Grierson (1 H. L. C. 498). It then becomes necessary for the prosecution to prove affirmatively that the crime of bigamy has been committed: Reg. v. Heaton (3 F. & F. 819); Reg. v. Curgerwen (Law Rep. 1 C. C. R. 1.) [He was stopped by the Court.] Giffard, QC. (with him Besley and Gough). The direction is right, even according to the contention of the prosecution, because the question whether or not Victor was alive at the date of the second marriage was left to the jury. The learned judge only told them what the presumption of law was. [LUSH, J. It must be taken that I entirely withdrew the question from the jury. In effect I directed them to return a verdict of Guilty.] As the law does not presume death until the expiration of seven years after a person is last heard of, it is clear that the law presumes a continuance of life during the seven years; and on this ground the direction was right. 66 Cur, adv. vult. May 1. LUSH, J. We are of opinion that the direction to the jury in this case, viz. that, there being no circumstances leading to any reasonable inference that he had died, Victor must be presumed to have been living at the date of the second marriage," was erroneous. In an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would in all probability find that he was so. If, on the other hand, it were proved that he was then in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law THE QUEEN v. LUMLEY. makes no presumption either way. The cases cited of Reg. v. Twyning (2 B. & Ald. 386); Reg. v. Harborne (2 A. & E. 540); and Nepean v. Doe d. Knight (2 M. & W. 894; 2 Sm. L. C., 6th ed. 510), appear to us to establish this proposition. Where the only evidence is that the party was living at a period which is more than seven years prior to the second marriage, there is no question for the jury. The proviso in the Act (21 & 25 Vict. c. 100, s. 57) then comes into operation, and exonerates the prisoner from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. The Legislature, by this proviso, sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition, viz. that when a party has been seen or heard of within seven years, a presumption arises that he is still living. That, as we have said, is always a question of fact. Being of opinion upon this ground that the conviction must be quashed, it becomes unnecessary to consider the other points reserved. (1) Conviction quashed. Attorney for prosecution: H. M. Daniel. (1) See ante, p. 61, note (1). Feb. 15, 1869. } THE QUEEN, ON THE PROSECUTION OF THE OVERSEERS OF ST. MARY, CARDIFF, Poor-rate-Rateability of Occupier of Wharf for The owners of docks and wharves let the wharves to a railway company. The company were the sole occupiers of the wharves, but by the agreement certain wharfage dues payable on all goods shipped or unshipped at the wharves were reserved to the landlords, and were paid direct to them by the owners or consignees of the goods : .. Held, that the railway company, as sole occupiers of the wharves, were liable to be assessed to the poor-rate in respect of the full rateable value of the premises, including the wharfage dues, without regard to the amount of benefit which they themselves derived from the occupation. APPEAL to the Glamorganshire Quarter Sessions, by the Rhymney Railway Company, against a poor-rate for the Parish of St. Mary, Cardiff, of the 27th of October, 1866, whereby the appellants were rated for their railway sidings, wharves, and tips, in the parish, on the gross estimated rental of 59607. and the rateable value of 4304/. 1. The notice of appeal, stated amongst other things, that the trustees of the Marquis of Bute were assessed in the rate at lower sums than they ought to be charged with, and notice to that effect was given to the trustees. 2. At the hearing, the trustees, as well as the other respondents, the overseers of the parish, appeared, and the rate was confirmed subject to this case. 3. There is no dispute as to the sums of 32111. gross rental, and 15847. rateable value, forming part of the above-mentioned assessment, and such sums are admitted to be properly charged as the gross and rateable value of the railway sidings, wharves, and tips, occupied by the appellants in the parish, exclusive of certain rates or dues, the propriety of including which is the subject of appeal. 4. By the statutes 1 Wm. 4, c. cxxxiii., and 4 Wm. 4, c. xix., the late Marquis of Bute was empowered to construct a certain wet dock and other works at Cardiff, and such works were executed, and the dock which is called The Bute West Dock" was built and opened for public use, and certain rates and dues for the use thereof were charged by authority of Parliament. 5. In the year 1852, the trustees of the present Marquis of Bute, to meet the requirements of the increasing trade of the port, commenced, as a private undertaking, and without any parliamentary sanction, the construction of another dock and proper wharf accommodation thereto, on the lands of the Marquis. This dock is called the " Bute East Dock" and was completed with the wharves belonging to it and opened for public use in the year 1856. 6. By agreement dated the 28th of February, 1855, and made in view of the completion of the Bute East Dock and works, the trustees of the Marquis of Bute agreed to grant a lease to the appellants, of the land necessary for the construction of a branch railway to the Bute East Dock, and the trustees agreed to complete four staiths for the shipment of coal upon the wharves adjacent to such dock, with sidings to connect such staiths with the branch railway, and to grant a lease of the wharves upon which such staiths and sidings should be erected, and of the saiths and THE QUEEN V. RHYMNEY RAILWAY COMPANY. sidings thereon, to the appellants; and the appellants agreed (so far as they should be able) to procure all the trade which they bring for shipment to the port of Cardiff to be shipped at the Bute Docks or the shipping places belonging to the trustees; and such trade was to be liable to the lockage and wharfage rates and dues for the time in force at the docks and shipping places, or either of them. The provisions of the agreement were to be embodied into a more formal instrument at the request of either of the parties thereto; but no such more formal instrument has been executed. 7. In pursuance of that agreement, the trustees completed the wharves, staiths, and railway sidings, and from that time the appellants have been in the sole occupation of the wharves, with the sidings and tips thereon. The trustees have been in the occupation of the dock adjoining to the wharves, namely, the Bute East Dock, since its completion in 1856. 8. The inconvenience of having the Bute West Dock regulated by parliamentary authority, and the Bute East Dock remaining a purely private undertaking, led to the obtaining by the trustees of the Act of 1865. 9. By section 59 of the Bute Docks Act, 1865 (28 & 29 Vict. c. cccxxv.), it is enacted as follows:-"From and after the commencement of this Act, the undertakers (the trustees) from time to time may demand and take for all goods specified in schedule 3 to this Act annexed, which are shipped or unshipped, received or delivered, at, in, or upon, or from any part of the docks and works, or any lands of the undertakers, or which are discharged or received within or at any of the docks and works, from one vessel into another vessel, or into the waterway of any of the docks and works, any sum not exceeding the several wharfage rates in that schedule specified with respect to those goods respectively; and as regards all goods so shipped, unshipped, received, delivered, or discharged, which are not specified in that schedule, may demand and take in respect of the same wharfage rates equal to the wharfage rates from time to time payable in respect of goods so specified which are as nearly as may be of like nature, package, and quantity; and the wharfage rates shall be payable by the owners or consignees of the goods. 10. Before and since the passing of the Bute Docks Acts, 1865, the practice has been for the person who contracts with the appellants for the tipping of the coal, coke, and culm, to furnish to the trustees monthly accounts of the respective quantities thereof so shipped at the wharves and tips, and for the trustees to collect the rates or dues payable under the 59th section from the freighters or consignees in respect of such quantities, and to apply them to the purposes of their trust. And with respect to other goods shipped at the wharves, and which are not tipped, the accounts have been furnished directly to the trustees by the owners of such goods, from whom the trustees have collected the rates or dues. The trustees also receive rates or dues under the same section on all goods transhipped from vessel to vessel in the docks. 11. The rates or dues included in the poorrate appealed against are the rates or dues paid in respect of all coal and other goods shipped and unshipped at the wharves, as stated in the last preceding paragraph. No part of the rates or dues paid in respect of goods transhipped from vessel to vessel is included in the rate. 12 and 13. It is admitted that the amount assessed against the appellants is a fair and proper sum, if the rates or dues mentioned in paragraph 11 are rightly charged against them as forming part of the value of property in their occupation. 14. The question for the opinion of the Court was, whether the appellants ought to have been rated in respect of the rates or dues, as mentioned in paragraph 11. 15. If the Court should be of opinion that the appellants were not so rateable, then the rate was to be amended by substituting the sum of 15847. for the sum of 4304/. as the total rateable value of the railway, sidings, wharves, and tips, in the occupation of the appellants. If the Court should be of opinion that the sum of 2720., being the difference between the sums of 43047, and 15841. and which is admitted to be a proper assessment for the rates or dues mentioned in paragraph 11, forms part of the rateable value of tenements in the occupation of the trustees, then the rate was to be amended by the insertion of the same as rateable value of property in the occupation of the trustees accordingly; but if the Court should be of opinion that such rates and dues were rightly taken into account as rateable value of the property so occupied by the appellants, then the rate was to be confirmed. Jan. 16. Field, Q.C., and Philbrick, for the respondents. The appellants alone are in the occupation of the wharves, and they are the only persons who can be assessed to the rate. The overseers are entitled to rate the land at its full value, and the appellants cannot, by an arrangement with their landlords, escape their liability to be assessed at the amount at which the landlords, if in occupation, would have been assessed. Frend v. Tolleshunt Knights (1 E. & E. 753; 28 L. J. (M.C.) 169) shews that the trustees of the Marquis of Bute could not be rated for the wharfage dues; and Lawrence v. Tolleshunt Knights (2 B. & S. 533; 31 L. J. (M.C.) 148) is an authority that the appellants are rateable. Reg. v. Thurlstone (1 E. & E. 502; 28 L. J.. (M.C.) 106) presents some difficulty to the argument for the respondents. There it was held that the right of shooting being reserved to the landlord, the tenant was not rateable in respect of the value of the shooting. But that case may be explained on the ground that THE QUEEN v. RHYMNEY RAILWAY COMPANY. an incorporeal hereditament is not rateable: Hilton v. Bowes (Law Rep. 1 Q. B. 359); and moreover the decision appears to have been doubted in Reg. v. Battle Union (Law Rep. 2 Q. B. 8). [HANNEN, J. In Rex v. Snowdon (4 B. & Ad. 713) it was held that the occupier of a toll house was not rateable to the poor for the tolls taken there, but for the toll house only: and the reason for the decision appears to have been, that if the toll house had been pulled down he would nevertheless be entitled to receive the tolls.] There the lessee did not occupy any portion of the soil. It is clear from Jones v. Mersey Docks (11 H. L. C. 443; 35 L. J. (M.C.) 1) that, in order to support a rate, the occupation need not be beneficial to the occupier; it is sufficient if the property be capable of yielding a clear rent over and above the necessary outgoings.. Reg. v. Marquis of Salisbury (8 A. & E. 716) is in favour of the respondents. The appellant there was held rateable in respect of tolls taken at a bridge, because he was occupier of the soil on which the bridge stood. Roberts v. Aylesbury (1 E. & B. 423; 22 L. J. (M.C.) 34) was decided on the same principle. When once it is established that a beneficial occupation may exist, the occupier is rateable in respect of whatever profit can be derived from the land, whether it is made or not: Reg. v. Vange (3 Q. B. 242). Bulwer, Q.C., H. G. Allen, and T. Allen, for the appellants. The appellants derive no benefit from the wharfage dues, which are not received even in the first instance by them. It is true that they are in occupation of the wharves, but they are liable to be assessed only in respect of their beneficial occupation. Lewis v. Swansea (5 E. & B. 508; 25 L. J. (M.C.) 33) is in the appellant's favour. There the corporation of Swansea were held not to be rateable in respect of tolls and dues taken at quays the soil of which was vested in the corporation. The wharfage dues taken by the trustees confer no benefit upon the appellants; and in Mayor of Lincoln v. Holmes Common (Law Rep. 2 Q. B. 482), the corporation of Lincoln were held not rateable in respect of land which yielded them no profit. Reg. V. Fletton (30 L. J. (M.C.) 89; 3 E. & E. 450) establishes that the occupier of land is rateable at the amount of profit actually derived therefrom, whether it is greater or less than the real value: in that case the amount of profit derived from the land was greater than the real value. In this case the amount of profit is less, but the same principle must be applied. The Court cannot decide in favour of the appellants without overruling Reg. v. Thurlstone (1 E. & E. 502; 28 L. J. (M.C.) 106), which is directly in point. A tenant can only hire what his landlord is willing to let. In the present case the soil only of the wharves s let to the appellants for a special purpose, but the dues which the trustees, and the trustees alone, are authorized by their Act of 1865 to levy, are not included in the demise. If the parish suffers any hardship by this, the legislature alone can apply the remedy. As the law stands, a poor-rate is not a charge upon land, but on the occupier in respect of the profit of his occupation, and the test is, what would a tenant give for the tenement as the person rated has it? Applying this test the appellants are entitled to judgment. Cur, adv. vult. Feb. 15. The judgment of the Court (Cockburn, C.J., Mellor, Hannen, and Hayes, JJ.) was delivered by MELLOR, J. The question raised and argued in this case was whether the appellants, the Rhymney Railway Company, as occupiers of the wharves, are liable to be rated in respect of the wharfage rates or dues paid for coal and other goods shipped and unshipped at the wharves occupied by the appellants, and we are of opinion that they are liable to be so rated. These wharfage rates or dues are perfectly distinct from the rates or dues payable in respect of vessels passing into or out of the docks. The latter dues are in no way connected with the use of the wharves; while the wharfage dues included in the present rate are payable for the use of the wharves only, and are in no way connected with the use of the docks. The dock dues therefore enhance the value of the docks, which are in the occupation of the trustees of the Marquis of Bute; and the wharfage dues enhance the value of the wharves in respect of the use of which they are payable, and which are stated in the special case to be in the sole occupation of the appellants. Primâ facie, therefore, it would seem that, as the trustees, as occupiers of the docks, would be rateable in respect of the dock dues, so the appellants, as occupiers of the wharves, would in like manner be rateable in respect of the wharfage dues. But it was contended on behalf of the appellants that they were not so rateable on the ground that, although the wharfage dues arose from the use of the wharves which were occupied by the appellants, yet they were not received by the appellants, but by the trustees of the Marquis of Bute, on their own account; and that as the appellants did not, and could not, derive any benefit from these dues, they could not in any way be considered as enhancing the rateable value of the appellants' occupation. The argument in substance comes to this, that the appellants are not liable to be rated in respect of the entire value of the land occupied by them, but only to the extent of the beneficial interest which they derive from such occupation. It is clear that no rate in respect of these wharfage dues could be imposed on the trustees of the Marquis of Bute, who are occupiers |