
    THE COMMONWEALTH, vs. SAMUEL SOUTH & al.
    
      On a writ of error to reverse a judgment of the Madison circuit court.
    
    A presentment against the county court for failing to fix the tavern rates, is defective if it omits to state that there are taverns in the county.
    24 April, 1820.
   The Chief Justice

delivered the opinion of the court.

This is a writ of error to a judgment of the Madison circuit court, quashing a presentment made by the grand jury at the September term, 1817.

The presentment charges, that the justices of the county court of said county did not, at any time within the year last past, fix the rates and prices to be paid at all or any of the taverns within said county, for liquors, &c. and that Samuel South, during the year aforesaid, was, and continues to be, one of the said commonwealth’s justices of the peace, and failed to fix the rates and prices during the year aforesaid.

This presentment, we are of opinion, is defective in not alledging that there were taverns in the county; for as the act of assembly, under which the presentment was made, only requires the justices of the county courts to fix the rates and prices to be paid at all taverns within their respective counties, it is evident if there be no taverns within a county, the failure of the justices of that county to fix the rates is no breach of the law. And whether taverns exist or not, in a county, is certainly not a matter of law but a matter of fact, and, consequently, to make out the offence, the fact should be charged in the presentment. We think, therefore, without noticing other objections taken to the presentment in this case, that it was properly quashed.

The judgment affirmed.  