An act for erecting a county hall and courts of justice, and also for providing accommodation for His Majesty's Justices of Assize, in and for the county of Worcester, after providing for the erection of a new county hall, courts of justice, offices, and Judges' lodgings, vested them, when built, in "the Justices of the Peace for the time being of the said county of Worcester," as trustees, for public purposes only. A county hall, courts, and Judges' lodgings, were erected by virtue of the act. The Judges' lodgings were used by the Judges during the assizes, and by the Magistrates during the sessions, and contained many sleeping and other apartments, employed for the purposes aforesaid, by the Judges and Magistrates. There was also a quantity of plate and wine; the former paid for by the county, the latter by subscription among the Magistrates. The whole of the premises were rated to the relief of the poor in the following manner :—“ The Justices of the Peace, for the county of Worcester, for the time being, for Judges' lodgings, situate in Foregate Street:"-Held, upon appeal, that this rating could not be supported, as there was no occupation by the Justices at large, except for public purposes.

By a rate, made for the relief of the poor of the parish of St. Nicholas, in the city of Worcester, certain premises were assessed in the rate as follows:-" The Justices of the Peace for the county of Worcester, for the time being, for Judges' lodgings, situate in Foregate Street." The Justices appealed against the rate, on the ground that the premises were devoted to public purposes, and there was no beneficial occupier. The Sessions confirmed the rate, subject to the opinion of the Court of Queen's Bench, upon the following

CASE.

For many years prior to the year 1834, a large mansion-house, standing upon certain land, in the parish of St. Nicholas, within the city and borough of Worcester,

NEW SERIES, IX.-MAG. CAS.

had been always rated to the relief of the poor of the said parish of St. Nicholas.

The mansion-house and land had been purchased in 1834, on behalf of the county of Worcester, for county purposes. The house had been taken down, and under the powers of an act of parliament, 2 Will. 4, (local and personal) entitled, 'An Act for erecting a County Hall and Courts of Justice, and also for providing accommodation for His Majesty's Justices of Assize, in and for the county of Worcester,' a large pile of building, comprising a county hall and courts and Judges' lodgings, had been erected upon the land in 1837.

By clauses in pages 3 and 9 of the abovementioned act, the Justices were authorized to purchase land, and erect thereon a new county hall, courts of justice, offices and lodgings for the accommodation of His Majesty's Justices of Assize, and all such other proper and necessary erections, buildings, and conveniences of every description, as the said Justices should deem expedient, and also to furnish the same. And other clauses, in pages 10 and 11 of the said act, vested the buildings and materials and the furniture in "The Justices of the Peace for the county of Worcester, for the time being," upon trust, to permit and suffer all the courts of assize, sessions, and others, to be holden in the said courts or in the county hall, and also to permit and suffer the said courts, county hall, offices, and lodgings, provided for the accommodation of His Majesty's Justices of Assize, to be had, used, and enjoyed, for the purposes for which the same might respectively be designed.

The Justices were also empowered, by the said act, to bring actions and prosecute indictments, in respect of these buildings and furniture, in the name of the clerk of the peace for the said county, for the time being.

A clause, in page 12 of the said act, directed the building to be supported and furnished by the county, and the Magistrates were authorized to appoint a person to take care of it, at such salary as the Magistrates should think proper.

By clauses, in page 15, they were allowed to let the building, when not used for county purposes, and to take from the high sheriff such a sum for the use of the

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Judges' lodgings at each assize, as had theretofore been allowed, or should thereafter be allowed, by or out of the Exchequer to the sheriff for providing such lodgings.

The county hall and courts are under one roof.

The courts are used at the county assizes and sessions for the trial of causes, prisoners, appeals, &c. There are also within the same building, a grand jury room, a room for the clerk of the indictments, two rooms for holding the county records, with other rooms for the accommodation of the Judges, Magistrates, and Counsel, at the Assizes and Quarter Sessions.

The hall is used for county meetings, and is also occasionally used as a ballroom, and is at the command of the county for county meetings, either of business or pleasure, for which it may be required; such as the nomination of knights of the shire to serve in parliament, the election of county coroners, and for taking the poll at any election, &c.

At the back of the courts, under a separate roof, but communicating with the courts by covered passages, is a house, called the Judges' lodgings, erected under the powers of the said act, for the use of the Judges and their suite during the assizes, and the Magistrates during the sessions, and containing many sleeping and other apartments, employed for the purposes aforesaid, by the Judges and Magis

trates.

The whole of the buildings and furniture have been paid for out of the county rates. A quantity of plate and wine, the former paid for by the county, the latter by subscription amongst the Magistrates, is kept in this part of the building. The plate is used by the Judges at the assizes and the Magistrates at the sessions. The wine is exclusively for the use of the Magistrates at the sessions dinners. They also provide themselves with their own provisions, but nothing is paid by them to the county for the use of the house and furniture.

The Judges' lodgings are at all times occupied by and are under the care of a man and his wife, who are called the hallkeeper and the house-keeper, who are paid a salary, and have the care of the whole building, both courts and lodgings. They

have no child, and have no accommodation beyond what is necessary to enable them to discharge the duties of their stations.

The house has not yet been let, nor is such letting contemplated; but in pursuance of the clause in page 15, the county treasurer has received from the high sheriff 1407. for the use of the lodgings by the Judges during the Lent and Summer Assizes, 1838; and the same yearly sum, or whatever the sum may be which is allowed the sheriff by the Court of Exchequer, will be demanded in future.

There are nine bed-rooms in the house, besides servants' apartments, and at the Quarter Sessions these nine bed-rooms are occupied by the Magistrates, those having the preference who give previous notice to the hall-keeper. Prior to the house being built, the Magistrates, who attended the Quarter Sessions, always slept at inns at their own expense.

The whole of the premises have been rated to the relief of the poor of the parish of St. Nicholas, in the following manner :

"The Justices of the Peace for the county of Worcester for the time being for Judges' lodgings, situate in Foregate Street; "Gross estimated rental 1407. ;" "Rateable value 1197. ;” “Amount of rate 21. 9s. 7d."

The act of parliament, under which the building had been erected, was to be considered as part of this case, and to be referred to by either party.

The question for the opinion of the Court was, whether the house, called the Judges' lodgings, was properly rated to the relief of the poor of the parish of St. Nicholas. If the Court should be of that opinion, then the order of Sessions was to be confirmed, otherwise it was to be quashed.

Whateley and Whitmore, in support of the order of Sessions.-The question is, whether any beneficial occupation is shewn, beyond the use of this building for public purposes. The private use made of it by the Justices is such an occupation. They use it for dining and sleeping at the sessions, and also put their wine into the cellars. They have also, under the act, a power to let the building when not used for county purposes, but they prefer using it for their own private convenience. The facts found here, bring this case within

several decisions, where property, under similar circumstances, has been held rateable-The King v. Green (1), The King v. the Inhabitants of St. Giles, in the City of York (2), The King v. Terrott (3), The Queen v. the Guardians of the Wallingford Union (4).

[LORD DENMAN, C.J.-You must make out a beneficial occupation in the persons rated, the Justices of the Peace for the county of Worcester.]

By section 14 (5), they are the legal owners, and the property is vested in them by the act for ever. In the case of partners, the rate may be imposed upon all, though some do not use the premises. As far as the private use goes, this is in the nature of a club-house, which is a rateable building. The objection goes rather to the style, under which the Justices are rated; but that is correct, as all may resort to it.

R. V. Richards and W. J. Alexander, contrà. The Justices have no authority from the act of parliament to use this building for other than public purposes;

(1) 9 B. & C. 203; s. c. 7 Law J. Rep. M.C. 94. (2) 3 B. & Ad. 573; s. c. 1 Law J. Rep. (N.S.) M.C. 50.

(3) 3 East, 506.

(4) 2 Per. & Dav. 226; s. c. 8 Law J. Rep. (N.s.)

M.C. 89.

(5) By section 14, p. 11, it is thus enacted, " And the said new county hall, courts of justice, offices, and lodgings, for the accommodation of His Majesty's Justices of Assize, proposed to be erected on the site thereof, when built in pursuance of this act, with their respective appurtenances, and every or any future addition thereto, with every matter and thing appertaining to the same, shall, in like manner, be vested in the Justices of the Peace for the time being of the said county of Worcester, upon trust, peaceably, quietly, and freely to permit and suffer all the courts of the Justices of Assize, Nisi Prius, oyer and terminer, and general gaol delivery, or special commissions for the said county of Worcester, and the General or Quarter Sessions of the Peace, for the said county of Worcester, to be holden in the said courts of justice, or one of them, or in the said county hall, as the occasion may require; and also permit and suffer the said courts of justice, county hall, offices, and lodgings provided for the accommodation of His Majesty's Justices of Assize, to be had, used, and enjoyed for the purposes for which the same may respectively be designed, and for such other public uses and purposes, as the Justices of the Peace for the time being, for the said county of Worcester, at the General or Quarter Sessions of the Peace for the said county, or any two of them, shall from time to time direct or appoint."

for which only it is vested in them. They are only trustees for public purposes. The Justices at large for the county cannot be said to derive any private benefit from this building; and although some few, when in attendance upon the Sessions, may do so, that circumstance will not warrant the imposition of this rate, upon "the Justices of the Peace for the county of Worcester." The case states, that there are servants in the house; but it does not at all appear what their salary is, or by whom paid, or out of what fund. With regard to clubhouses, the rate is in the name of the secretary, who is usually in occupation. The cases that have been cited established a rateability under the circumstances. That may or may not be so here; but "the Justices of the Peace for the county of Worcester" cannot be the rateable parties. In The Queen v. the Guardians of the Wallingford Union, the guardians were made a body corporate, and occupied beneficially; but here the body corporate, as the trustees may be called, occupy only for public purposes. Whence are the Justices to find funds for the payment of this rate? They have no power to look to the county rate for it. There is no injustice in looking for the money to the individual members, who make use of the building for their own convenience; but that cannot be done by this form of rate.

LORD DENMAN, C.J.-I am of opinion, that this rating of the Justices cannot be supported. The whole body, at all events, do not hold this property beneficially. It is only such a part of it as choose to go there, and make use of it for their own convenience; and such a use by them, as individuals, cannot make the whole body rateable, in whom it is vested for public purposes only.

PATTESON, J.-I am of the same opinion. The act of parliament, under the authority of which this building has been erected, vests it in the Justices, as trustees, for public purposes only. But it appears, that it is used by some individuals for other than public purposes: how can that be said to be the use of all the Justices under the act of parliament ?

WILLIAMS, J.-This case has been well put upon both sides; the contention on the

one side being, that as there is an occupation beyond that for public purposes, the building is to be rated, upon the authority of several decided cases; and upon the other, that as there is no user by all the Justices, except for public purposes, no rate can be imposed upon them, at all events as a body. If the use is for public purposes only, then, ex concessis, no rate can be imposed. If, then, A. B. and C. use it otherwise, can it be said that that is to make all the Justices liable?

COLERIDGE, J.-I quite agree that the beneficial occupation, if any can be shewn, is in certain individuals only, and not in those in whom the act of parliament has placed the legal estate.

Licence-Public Entertainment-25 Geo. 2. c. 36. s. 2.

The penalty given by the 25 Geo. 2. c. 36. 8. 2, for keeping an unlicensed place of entertainment, attaches only in cases where the place is kept open for the purpose, with the knowledge of the owner. It need not be exclusively appropriated to that purpose: it is enough if that be one of the purposes for which it is kept; and it is immaterial whether the owner derive any benefit from the entertainments. All these questions are, however, questions of fact for the determination of a jury.

This was an action of debt to recover the penalty of 100l., imposed by the 25 Geo. 2. c. 36. s. 2 (1), for keeping a place of public entertainment, not licensed according to the provisions of the act. The defendant pleaded nunquam indebitatus (2). At the trial, before Lord Abinger, C.B., at the London Sittings, after Trinity term, it appeared, that the defendant was the proprietor of a tavern in Duke's Place, called Howard's Coffee-house, which had not been licensed for music and dancing, according to the directions of the 25 Geo. 2. c. 36. s. 2; that persons of (1) Made perpetual by 28 Geo. 2. c. 19. s. 1. (2) Query, as to this being a good plea.

the Jewish persuasion were in the habit of frequenting the tavern on the celebration of their marriages, when a large room in the house was generally used by them and their guests, for the purpose of dancing and other amusements; also that in two or three instances, the room had been let by the defendant to persons who had given balls and concerts there, to which visitors were admitted by tickets, or by paying money at the door; but the defendant did not participate in the profits, and had never derived any benefit from the meetings, except the money paid for the use of the room. It further appeared, that on one occasion, there had been a shilling taken at the bar, (where the wife and servants of the defendant were in the habit of serving,) from a person who had been in the room; but refreshments had not been generally provided by the defendant.

On these facts, the learned Chief Baron directed the jury to find a verdict for the defendant.

In this term,

Humfrey, on behalf of the plaintiff, obtained a rule for a new trial, on the ground, that the case should have been submitted to the jury; against which

Jervis shewed cause.-This penalty can be recovered only in cases where the dancing or other like entertainment is of a public nature, and the house is kept for that purpose by the owner, who is the only party liable to the penalty. In the cases on this subject, the place of entertainment has been kept and appropriated to that particular purpose. In Clarke v. Searle (3), indeed, it does not appear to have been so; but the question did not arise in that case, which was decided on another point. In Archer v. Willingrice (4), the house was open to the public regularly every Monday. Bellis v. Beal (5) was a decision on the meaning of the word "kept;" but in that case, the entertainments were frequent, and were regularly given on certain days; and the objection was, that the room had been used for other purposes, which was held to be immaterial. So in Green v. Botheroyd (6), which was a case of concerts given

(3) 1 Esp. 25. (4) 4 Esp. 186. (5) 2 Esp. 592.

(6) 3 Car. & Pay, 471.

at a licensed hotel, the meetings were frequent and public, and Lord Tenterden held, that it was a place kept for the purpose. In all these cases, the constant use of the rooms for these kind of entertainments, shewed the purpose for which they were kept, and that the defendant was aware of it. The present case is very different. The frequent use of the room by persons of a particular sect, on private occasions, and for private entertainment, negatives any presumption of its being kept for public entertainments, and was perfectly legal: Bellis v. Burghall (7) is to that effect. In that case, a room was kept by a dancing-master, in which a number of persons met together every Wednesday night, for the purpose of dancing, but subscribers only and their friends were admitted, and not the public indiscrimi nately. It was held, that such meetings were not within the statute. The mere occasional use of the room in question did not make it a place kept for that purpose -Shutt v. Lewis (8) is an authority. In that case, a room not usually appropriated to public dancing or music had been, on one occasion, let for eight days, during which period (in celebration of a Jewish festival) it was used for dancing and music. Lord Ellenborough held, that this was not a keeping of the house for that purpose; and he laid down the principle, that the mere use of a room for the temporary purpose of dancing, did not constitute it a room kept for that purpose, within the meaning of this statute. In the present case, there was nothing more than an incidental use of the room for dancing and music, which was no evidence of a keeping for the purpose. Moreover, there was no proof that the defendant knew of the dancing or music, and that is clearly necessary.

Humfrey, in support of the rule.-Whether or not a room is kept for the purpose of public entertainment, is a question for the jury; and, in this case, there was evidence from which a jury might infer that fact.

[LORD ABINGER, C.B.-There was nothing more than an incidental use of the

(7) 2 Esp. 722. (8) 5 Esp. 128.

room, which cannot amount to any evidence of its being kept for that purpose.]

There were several instances in this case; but supposing there had been but one, still the place might have been kept for that one occasion. In Clarke v. Searle, one instance only was proved, and that case went to the jury.

[LORD ABINGER, C.B.-It was not shewn here that the defendant knew of the entertainment.]

That also would be a question for the jury, and there was some evidence for them upon that; and assuming he did not know it, still he was liable. In Shutt v. Lewis there was only one solitary instance, and that one was not of a public nature; there was, moreover, proof that on no other occasion had it been used for the purpose. It would be laying down a strong rule to say, that where there is public dancing in a room, it is a matter of law, and not of fact, whether that room is kept for the purpose. The number of instances cannot alter the rule.

[LORD ABINGER, C.B.-Suppose a lady were to give, at her own residence, a public entertainment, at which there was music and dancing, could it be said that the house was kept for the purpose?]

That case is very distinguishable from the present; but in every case it must be a question for the jury.

LORD ABINGER, C.B.-It appears that in this case there was some evidence to go to the jury as to the keeping open of this house by the defendant. I ought not, therefore, to have withdrawn the question from them; and this rule, for a new trial, must be made absolute, though there is no doubt the action is brought for the attorney's costs.

PARKE, B.-I think this case should have been submitted to the jury. There can be no difference of opinion as to the law. The act of parliament attaches a penalty to any person who keeps open an unlicensed house for the purpose of dancing or other similar entertainment. must, therefore, be shewn that the house was kept open for that purpose, and that with the knowledge of the defendant. Proof that dancing had taken place there on one occasion, would not be sufficient.

It