aboard twenty-four hours after such arrival, is in effect the same thing, and confines the insurance to the homeward cargo. It is very true that there will be some difficulty in making the proper calculation as to the sum to be paid, on the supposition that the subject of insurance is the full homeward cargo; because, on such a voyage, it is not easy to say what the value of a full home cargo will be; nor what proportion of a full cargo is on board at the time of the loss. That difficulty occurred, and nearly to the same extent, in Forbes v. Aspinall (a), though it does not seem to have been brought to the attention of the Court; but it cannot enable us to reject the words which cause the policy to attach on the homeward cargo only, and to declare that the policy was meant to include both. We think, therefore, that there should be a new trial; but it will be much better to refer the average loss, as the plaintiffs are clearly entitled to recover it. Rule absolute. 1833. RICKMAN against CARSTAIRS. 1833. Thursday, Nov. 14th. A party who applies to the Court for a criminal information against a defendant for breach of duty as a magistrate as well as an in A The KING against HEMING. RULE nisi had been obtained for a criminal information against the defendant, on affidavits stating, that at an election for members of parliament for the northern division of the county of Warwick, at Nuneaton, one of the polling places of that division, a riot had taken place, and that the defendant, a magistrate of the county, had neglected his duty, by refusing of his intended to call in the military, or to establish a sufficient force to repress the riot, and also that he, defendant, had taken an active part in the riotous proceedings. dividual, must, before motion, give notice to the defendant application. Sir J. Campbell (Solicitor-General) now objected that notice of the application to the Court had not been given to the defendant, before the criminal information was moved for. Sir James Scarlett contrà, contended that the defendant was charged with an offence, including a breach of his duty as an individual as well as a magistrate, and therefore that the want of notice was no answer to the application. DENMAN C. J. It is an established rule of practice, that no application for a criminal information can be made against a magistrate for any thing done in the course of his office, without previous notice. It is true, that in this case, some acts attributed to the defendant are such as any individual, not a magistrate, might be indicted for. Whether we should have granted granted a criminal information for such acts alone may be doubtful. As some of the acts stated in the affidavits do affect this defendant in the character of a magistrate, the case falls within the general rule which requires notice. The rule for the criminal information must be discharged. 1833. The KING Rule discharged. The KING against The Justices of the West Thursday, (BOWER against The Accounts of the Commis- A RULE nisi had been obtained for a mandamus calling upon the Justices of the West Riding to enter continuances and hear the appeal of James Bower against the accounts of Frederick Robert Jones and Joseph Taylor, the commissioners for inclosing lands in the manor of Meltham in the said riding, which accounts purported to have been examined and signed certain justices of the riding, on certain days in 1831 by and 1832. It appeared by the affidavit in support of Nov. 14th. By statute, 788-607 tain cases to appeal to the quarter sessions for a particular district, giving further notice in the event of such appeal nor did it appear that there was any at those ses the rule, that the accounts were passed under an act, done, or omitted to be done, in pursuance of this act appeal under notice had been given, was respited, and or the said recited acts, or either of them, he may came on at a subsequent ses sion, pursuant to the respite. The appellant was called upon to prove that he had given notice of trial of the respited appeal, and on his failing to do so the appeal was dismissed: Held, that the sessions were wrong in requiring such notice, and that the case was one in which this Court might over-rule their decision. Mandamus granted to hear the appeal. 1833. The KING against The Justices of the West Riding of YORKSHIRE. appeal to any general or quarter sessions of the peace, to be holden for the west riding of the county of York, within four calendar months next after the cause of complaint shall have arisen, giving to the said commissioners, and to the party or parties concerned, notice in writing of such appeal and of the matter thereof, ten days at least before such general or quarter sessions (except with respect to the accounts of the said commissioners), which, notwithstanding the same shall have been examined and published as aforesaid, may be appealed against at any time within six calendar months after the date of the award of the said commissioners, on giving to the said commissioners such notice as last aforesaid." Notice of the present appeal was given in due time for the quarter sessions holden at Wakefield in January 1833; and due notice was afterwards given that the appellant would move at those sessions, that the appeal might be respited to the next general quarter sessions to be holden at Pontefract, and also that the said accounts might be referred to a justice of peace, or some other person, to be by him examined and balanced. The respite was moved for and granted, but the respondents would not agree to refer the accounts. The Pontefract sessions were holden on the 3d of April, and the 11th of that month was appointed for hearing the appeals. On the said 3d of April the appellant gave notice to the respondents, that he should again move to respite the appeal till the following sessions, on the grounds that the commissioners had not passed the whole of their accounts, and that the bills of I their clerk had not been delivered in and taxed. The respondents on being served with such notice did not say that they should prepare to try the appeal, or should oppose the respite. The motion for a respite was was made on the 11th of April, and adjourned to the 12th, when it was renewed, and the appellant again proposed a reference of the accounts, which the respondents would not agree to. The chairman intimated that the appeal must be called on in its turn, and that if the appellant was not prepared to try, it must be struck out. The appeal was then called on, and the majority of the bench having refused to respite, and the respondents declining to refer, except upon terms disapproved of by the appellant, the appellant's counsel said he would go on with the appeal. The respondents then called upon him to prove his notice of appeal for the Pontefract sessions. No such notice had been given, or considered necessary, by the appellant; and the sessions, in consequence, dismissed the appeal. In an affidavit made by one of the respondents in opposition to the rule, it was stated that the appeal was originally entered and respited at the October sessions 1832; that the deponent on receiving notice of a motion to be made at the Pontefract sessions for a further respite, gave no intimation that he should not prepare to try, and did in fact so prepare; that the appellant's counsel in the course of his application to the court at Pontefract on the 12th of April, admitted that he was unprepared to try; and that although one of the counsel for the respondents called upon the appellant's counsel to "prove his notice," the point as to notice of appeal to the then sessions was not raised or decided, and the appeal did not go off on that ground, nor was the trial of the appeal at all pressed on the court. F. Pollock, Milner, and Dundas, now shewed cause. There was no real hardship on the appellant in this X x 3 case 1833. The KING against The Justices of the West Riding of YORKSHIRE. |