private use, the occupier of it will be liable to this rate. So here the stables in question are used for a public purpose by the horseguards, in contradistinction to private occupation; and as long as they continue to be used for this purpose, there is no private occupier of them. On this ground proceeded the case of Lord Amherst v. Lord Sommers (a) (with which decision I perfectly coincide); where Lord Amherst, as colonel of the second troop of horse-guards, was held to be exempt from the payment of the poor-rate imposed upon some stables occupied by the horses belonging to the troop. Lord Amherst could not in any sense be considered as the occupier, so as to be liable to be rated; neither could the soldiers. So here, whilst these stables continue to be used by the guards, they cannot be considered to be in the private occupation of any one, but are public buildings within the meaning of the latter section of the act. And that clause cannot be confined (as has been contended) to subjects not enumerated in the former one; because then it would have no operation whatever, since the former section mentions "hereditaments," which includes every species of landed property. ASHHURST, J. It clearly was the intention of the Legislature, when this act of parliament was framed, that no real property within this district should be exempted from the rates imposed by it. The property must be charged to some person or other. If it be occupied by private persons, the rate must be paid by the occupier; if converted to a public purpose, by the proprietor. But the same buildings, which have been occupied by private persons, may become public buildings within the meaning of this act of parliament, from the kind of occupation. Now here Lord Lothian cannot be considered as the occupier of these stables, because they are converted to a public purpose; then it follows, that, as these buildings are liable in the hands of some person, the onus must fall on the proprietor, by the latter section of the statute: if they should hereafter be in private occupation, the rates must again be paid by the occupier. BULLER, J. I confess that, when I first read this case, it struck me in a different light: I thought that the words in the latter clause meant buildings which were in their nature public; and that "all other public buildings" following "chapels," &c. meant buildings ejusdem generis. But I now think that the construction which has been put on the statute is the true one; and that whe (a) Ante, 2 vol. 372. 1790. ECKERSALL against BRIGGS. ther 1790. ECKERSALL against BRIGGS. ther a building shall be considered as public or private, must depend on the use to which it is applied. The observation which my Lord has made on the term "warehouse," seems decisive. GROSE, J. The ground upon which we decided the case of Lord Amherst v. Lord Sommers was, that the stables were considered as the stables of the public. Now in this case the Legislature intended that the proprietors of buildings, which are used by the public, should pay all rates imposed on them by virtue of this Act; and they have expressly charged such proprietors by the latter section. Postea to the defendant Friday, Nov. 12th. If defendant pay money into Court, and plaintiff nevertheless proceed to trial is given against STEVENSON against YORKE. ON the trial of this cause the defendant obtained a verdict; but, as he had paid money into Court before trial, Marryat now moved that the plaintiff should be allowed his where a verdict costs up to that time, on the authority of Hartley v. Bateson (a), and Griffiths v. Williams (b); and that they might be deducted out of the costs to be paid by him to the defendant: in the latter case he observed that a similar rule was made after verdict. him, he is not entitled to the costs up to the time when the money was paid into Court (d.) 18 T. R. 408. 486. Willes, 191. 2 B. & P.56. But BULLER, J. said, that though the plaintiff was entitled to the costs up to the time of paying money into Court if the application were made before trial, yet that the party came too late after trial; and that that part of the case of Griffiths v. Williams could not be supported. Per Curiam, Rule refused (c). (a) Ante, 1 vol. 629. I (b) Ib. 710. () Vid. Stodbart v. Johnson, ante, 3 vol. 657. See also the next case. (d) See Burstall v. Horner, post, 7 vol. 372. Tuesday, Nov. 16th. S. P. If defendant pay money into IN KABELL against HUDSON (a). N this case the defendant paid money into Court at the time of pleading, which the plaintiff then took, but proceeded to Court, which the trial; when he was nonsuited. And he obtained a rule, on a plaintiff agrees to accept, he former day in this Term, to shew cause why he should not have may serve the defendant with his whole costs, notwithstanding he was nonsuited on the notice of an ap- ground that the defendant had not served him with notice of pointment be. fore the Master to tax the costs. (a) See the preceding case. an an appointment before the Master to have his costs taxed; which Erskine now insisted was necessary, according to the practice of the Court; in which he was confirmed by the Master. Marryat, who opposed this motion, observed that the books of practice did not agree upon this subject; the affirmative being laid down in Imp. 4 edit. 224; and the negative in Richards, Pract. B. R. 228; Harr. Pract. B. R. 93; and 1 Crompt. 3 ed. 143. Such a rule, if it exist at all, is highly inconvenient; since the defendant must take out three summonses and make a tender of the costs afterwards. But even if such a rule do prevail, still the plaintiff has waved it in this instance by taking the money. out of Court. And that was one of the grounds on which the Court decided in Griffiths v. Williams. At all events the plaintiff is not entitled to his whole costs; and, according to the authority of Stevenson v. Yorke, not to any costs. BULLER, J. This is the first motion of the kind that was ever attempted to be made; for it calls on the defendant to shew cause why the plaintiff should not have his full costs, notwithstanding he was nonsuited: if the nonsuit cannot be supported, he should have moved to set it aside; but as long as it remains in force, he cannot have his full costs. Neither is he entitled to the costs even up to the time of the defendant's paying the money into Court: that was decided the other day. If a plaintiff choose to accept the money when it is paid into Court, or even before trial, the Court will give him his costs up to the time of paying the money into Court: but if he will, notwithstanding, proceed to trial and fail, he loses all claim to those costs. The rule of practice, which has been relied on in support of the motion, seems inconvenient; but inconvenient and absurd as it may be, we should hold ourselves bound by it (being only two judges in Court). However, supposing that such is the established practice, it will not govern this case; for even if the defendant (not the plaintiff) be bound to give notice of the appointment to tax the costs, there is a prior act to be done by the plaintiff, namely, his signifying to the defendant his assent to take the money; for if he will not assent to that, it is nugatory for the defendant to give notice of an appointment which the plaintiff will not observe. GROSE, J. agreed that it was necessary for the plaintiff to signify his assent to accept the money before the notice of the appointment is served. After 1790. KABELL against HUDSON. 1790. KABELL against HUDSON. Afterwards BULLER, J. said the Master is now satisfied that it is more convenient that the plaintiff, than the defendant, should give notice of the appointment to tax the costs: therefore let it be understood in future that such is the practice. Rule discharged. Saturday, Nov. 14th. An appeal against a poorrate must be lodged at the sessions next after the allowance of it; and if at a subsc quent sessions it be dismissed A The KING against JAMES ATKINS. POOR-RATE was made in October 1789, and allowed in the November following; against which the defendant appealed to the last Easter Sessions, when the appeal was dismissed with costs, because it was not made to the next Sessions. The rate and the order of Sessions having been removed here by certiorari, The Court, without hearing any argument, confirmed the order for not having of Sessions on the authority of the cases of R. v. Penryn (a), and R. v. Micklefield (b). But been lodged in time, and the order of Sessions be remov ed by certiorari into B. R. the Court will not go into any ob jection appear ing on the face of the rate; for cannot do otherwise than confirm it. Graham, who originally moved to quash the rate, and who was not in Court when this case was called on, on a subsequent day, desired that the Court would permit him to renew his motion to quash the rate for an informality appearing on the face of it, it having been made by one overseer only. And he contended that the order of it was competent to the party complaining of the rate, to take adSessions being right, the Court vantage of any defect which appeared on it, notwithstanding the Sessions had properly dismissed the appeal, because it had not been lodged in time. The proceedings below are now before the Court; and they will not suffer a rate which is allowed to be apparently illegal, to be confirmed here. In R. v. Stanley (c), where an appeal against an order of bastardy was dismissed upon the ground of its not having been made at the sessions next after service of the order, and the orders were removed here, Mr. Wallace objected to the original order for a defect appearing on the face of it; and Mr. Chambre, on the other side, admitting that the order could not be supported, it was accordingly quashed. BULLER, J. said, that in R. v. Stanley, the Court came to no determination on the point, and that it passed by consent: but here the party objecting to the rate, is not entitled to remove it. And, as the order of Sessions is right, we cannot do otherwise than confirm it. Per Curiam, Order of Sessions affirmed. (a) Tr. 24 Geo. 3. B. R. (b) Hil. 25 G. 3. B. R. (c) Cald. 172. DOE 1790. Der on the Demise of HENEAGE against HENEAge. EJEC 'JECTMENT for lands lying in the county of Lincoln, tried before Lord Kenyon, at the last Assizes, when a case was reserved for the opinion of the Court; stating, Tuesday, Nov. 16th. A. devised to his son B. for life; remainder to trustees during B.'s life, tingent re to permit B. to receive the rents and profits, remainder to the first and other sons of B. in mainder to C.; succeed to the limitation of should cease, should take as dead; B. suc had a son: held tion to the That Thomas Heneage deceased (the late grandfather of the to preserve conlessor of the plaintiff in the ejectment) being seised in fee of the mainders; premises in question, by will dated the 28th February, 1735, de- nevertheless vised the same to his brother George Heneage, and to William Taylor, and their heirs, &c. in trust, as to part of the premises, to the use of his wife Catherine Heneage for life, in lieu of her dower; remainder to trustees for a term of 500 years, upon certain trusts tail-male, rewhich never took effect (and which term hath been since duly with a proviso surrendered by the trustees); remainder as to the part before limited that if B. should to the said Catherine, and also as to the parts whereof no use was estate of D. the thereinbefore limited, to the use of his son George Fieschi Heneage, A's estate to B. by his first wife, for life; remainder to the use of the said George and the next Heneage and William Taylor, and their heirs, during the life of in rem the said G. F. Heneage, in trust to preserve the contingent uses if B. were and estates thereinafter limited, nevertheless to permit the said G. ceeded to D.'s F. Heneage to receive the rents, &c. thereof during his life; remainder estate before he to the use of the first and other sons of G. F. Heneage successively that the limita in tail-male; remainder to the use of the devisor's son Thomas by trustees conhis then wife for life; remainder to trustees to preserve contingent the whole of remainders; remainder to the first and other sons of the said Tho- B.'s life so as to support the mas Heneage (the son) successively in tail-male; remainder to contingent rethe use of the devisor's third and other sons successively in tail- Vid. Doe v. male; remainder to the devisor's right heirs in fee. In which will is contained the following proviso: "Provided always, and my "will is expressly, that in case it shall happen that my said son "G. F. Heneage, or any son or sons of his, to whom the said "manors, &c. thereinbefore mentioned are limited as aforesaid, "shall ever inherit or take by descent, or by any gift, grant, or "devise, or otherwise become seised in possession for his or their "life or lives, or for any greater estate, of the whole or so much. "of the real estate of my said brother George Heneage as shall ex"ceed the yearly value of the estate by this my will limited in use "to him and them by 1002. by the year, that then and from such "time as my said son G. F. Heneage, or any son or sons of his "shall so inherit, or take by descent, gift, grant, or devise, or "otherwise tinued during mainders. Hicks, post, 7 vol. 433. |