MAITLAND accordingly, on the ground that the stable passed to the defendant under the lease of the 18th August, 1823; against which

v.

MACKINNON.

[ 612 ]

[ *613 ]

Mellish (Garth with him) showed cause:

The stable did not pass to the defendant under the lease of the 18th August, 1823. The demised premises are described by metes and bounds, and by reference to a plan in the margin of the lease which excludes the stable. Then follow the words "together with all out-houses, edifices, buildings, stables, yards, &c. to the said premises hereby demised belonging or appertaining." But where the demised premises are described by metes and bounds, no more will pass under any general words than is contained in the particular description: Doe d. Meyrick v. Meyrick (1). Moreover, the stable cannot be said to belong or appertain to the demised premises, for one piece of land cannot properly appertain to another. (He also argued that the stable would not pass because it was not mentioned in the memorial registered under the 7 Anne, c. 20, s. 5.)

Montague Smith and Maude, in support of the rule:

The stable passed under the lease of the 18th August, 1823. In the year 1795, the owner of the leases of both houses assigned that of No. 7, Great Cumberland Street, reserving to himself the stable; and thenceforth, up to the time when the lease of the 18th August, 1823, was granted, the stable had been occupied with No. 4, Hyde Park Place. The general words in that lease are therefore apt words to pass the stable. The words "belonging or appertaining" are equivalent to "occupied with or enjoyed." No doubt, land cannot be "appurtenant" to a messuage in the strict sense of the term, but, in order to give effect to the intention of the parties, the word "appurtenant" may be read in the sense of "usually held, used, occupied, or enjoyed therewith": Hill v. Grange (2), Morris v. Edgington (3), James v. Plant (4); 1 Shep. Touch. *94. In Ongley v. Chambers (5), Lord GIFFORD, in delivering the judgment of the COURT, said: "In Cro. Eliz. 16, ANDERSON, J., says, 'That land shall pass as pertaining to a house which has been occupied with it by the space of ten or twelve years, for by that time it hath gained the name of parcel or belonging, and shall pass with the house by that name in a will or leases.'' Doe d. Norton v. Webster (6) is also an authority that land occupied with a messuage may pass under a grant of the messuage "with the appurtenances." Again, in Doe d. Gore v. Langton (7), the words "thereunto be(1) 37 R. R. 687 (2 Cr. & J. 223). (2) Plow. 170.

(3) 12 R. R. 579 (3 Taunt. 24).

(5) 1 Bing. 483.

(6) 54 R. R. 597 (12 Ad. & El. 442).

(4) 43 R. R. 465 (4 Ad. & El. 749).

(7) 2 B. & Ad. 680.

longing were construed in their popular sense. In Doe d. Meyrick v. Meyrick (1), there was a particular enumeration of the closes intended to be passed, which confined the operation of the general words. Here the covenant to surrender, at the end of the term, the "racks and mangers," shows that the stable was intended to pass. Assuming that the language of the lease is ambiguous, the continuous user of the stable with No. 4, Hyde Park Place, raises the presumption that it was intended to pass, notwithstanding the plan in the margin of the lease excludes it: Simpson v. Dendy (2), Berridge v. Ward (3). Cur. adv. vult.

The judgment of the COURT was now delivered by

POLLOCK, C. B.:

In this case the plaintiff is entitled to our judgment unless the stable passed under the reversionary lease of August, 1823. We are of opinion that it does not. There is in it a precise. and most particular description by metes and bounds of certain premises to be demised, which do not include the stable in question. It may be that something would pass, though not within the boundary set out, if necessarily a part of the premises, as for instance a front area might so pass. But the stable in question would not pass on that principle, because undoubtedly it is not necessarily a part of the dwelling-house and land described. Accordingly the counsel for the defendant did not contend for this, but urged that the stable passed under the subsequent words describing all "out-houses," &c., "stables," &c., "belonging to the premises." Now every one knows that these and similar words are inserted in leases without reference to any particular subjects to which they may be applicable, as indeed appears in this case, for, among other things, "watercourses are mentioned, there being no water-course connected with the premises. Still there may be cases in which something would pass by these words, and therefore it is necessary to see whether in this case the stable does pass. The words relied on are stables belonging." But if the premises themselves are examined, it is difficult to say the stable "belongs" to the house in Hyde Park Place. Adding it to that house makes the outline of both premises irregular, obviously cuts a piece from the Cumberland Place plot, and adds it to the plot in Hyde Park Place. Then the cellars under the stable belong to No. 7, Great Cumberland Street, and there was a door from thence to the stable. If the history of the premises is examined, it is (1) 37 R. R. 687 (2 Cr. & J. 223). (3) 128 R. R. 764 (10 C. B. N. S. (2) 125 R. R. 725 (8 C. B. N. S. 400).

MAITLAND certain that originally the ground on which the stable stands MACKINNON. "belonged" to No. 7, Great Cumberland Street, and that if the

[ *615 ]

1862. Nov. 24.

[ 615 ]

lease of that house were forfeited, with it would be forfeited the stable. It comes to this, that, notwithstanding these considerations, the stable must be said to "belong" to the house No. 4, Hyde Park Place, because it has been used with it for (no doubt) a vast number of years, with no open communication with any other premises. It seems to us that these words, which are not words of art, do not include *these stables,-that any person knowing the facts would say, "the stable belongs to No. 7, Great Cumberland Street though it has been used with No. 4, Hyde Park Place."

66

In the argument it was much relied upon by defendant's counsel that there is a covenant to give up racks" and mangers," but the mention of stables in the lease would of course lead to a covenant to give up racks and mangers; and if the one did not cause the stable to pass, so neither in our judgment would the other. The case may appear to be hard upon the defendant, who no doubt intended to renew his lease of all that he actually occupied; but it seems to have escaped the attention of those who prepared the lease that the defendant held his house and premises, No. 4, Hyde Park Place, under one title, and the stable in question under another; and the lease in its present form does not operate on both.

Judgment for the plaintiffs.

PARR. LILLICRAP (1).

(1 H. & C. 615-620; S. C. 32 L. J. Ex. 150; 9 Jur. N. S. 80; 11 W. R. 7 L. T. N. S. 425.)

94;

Where a defendant pays money into Court, which the plaintiff accepts in satisfaction of his claim, he “recovers "the amount within the meaning of the 13 & 14 Vict. c. 61, s. 11 (2), which, in certain cases, deprives a plaintiff of costs if he "shall recover a sum not exceeding 201.”

THIS was an action to recover 12l. 5s. 6d. for goods sold and delivered. The defendant pleaded to the whole declaration payment into Court of 12l. 5s. 6d. The plaintiffs replied by accepting the sum paid into Court in full satisfaction and discharge of the causes of action in the declaration mentioned. The Master taxed the plaintiffs' costs at 41. 7s., whereupon the defendant obtained a summons at Chambers to review the taxation by disallowing the whole of the items comprised in the

(1) Approved, Boulding v. Tyler (1863) 3 B. & S. 472, 32 L. J. Q. B. 85. Referred to, Pearce v. Bolton [1902] 2 K. B. 111, 71 L. J. K. B.

558, 86 L. T. 530.

(2) See now County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 116.

plaintiffs' bill of costs. The summons was heard before Martin, B., who made an order accordingly.

Gadsden now moved to rescind the order:

The 13 & 14 Vict. c. 61, s. 11 (1), deprives a plaintiff of costs in actions of *covenant, debt, detinue or assumpsit, if he "shall recover a sum not exceeding 201." Here the amount paid into Court was not "recovered" within the meaning of that enactment. *

(MARTIN, B.: If the plaintiff does not recover the money, how does he get it?)

The 11th section of the 13 & 14 Vict. c. 61 (2), contemplates a recovery by judgment, for it goes on to say, "the plaintiff shall have judgment to recover such sum only, and no costs." This is a voluntary payment on the part of the defendant.

(MARTIN, B., referred to Dunston v. Paterson (3).)

Formerly a plaintiff was not deprived of his costs in the case of a judgment by default, but that is altered by the 19 & 20 Vict. c. 108, s. 30; and if the Legislature had intended that a plaintiff should have no costs where money is paid into Court, there would have been a similar enactment.

(POLLOCK, C. B., referred to the 73rd section of the Common Law Procedure Act, 1852.)

That section enables the plaintiff to sign judgment for his costs; but there is no judgment in respect of the debt.

(BRAMWELL, B.: If the language of the statute had been that a plaintiff shall have no costs when he "shall not recover a sum exceeding 201.," there could have been no doubt. You draw a distinction between that and "shall recover a sum not exceeding 201.")

The latter part of the 11th section shows that the word *"recover" has reference to a recovery by judgment.

(MARTIN, B., referred to Robertson v. Sterne (4).)

That was the case of a compulsory reference under the Common Law Procedure Act, 1854, which gives to the award the effect of a judgment.

(BRAMWELL, B.: Suppose an action is brought for 257., and the defendant pays into Court 157., and the plaintiff goes to

(1) See now County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 116. (2) See note (2), p. 688, ante. R.R. VOL. CXXX.

(3) 116 R. R. 670 (5 C. B. N. S.
279).
(4) 13 C. B. N. S. 248.

44

PARR

v.

LILLICRAP.

[ 618 ]

66

trial and recovers 107. more, according to your argument he would not have recovered 251., but 107. only, and therefore would not be entitled to any costs.)

In that case there would be a judgment for 251.

Rochfort Clarke appeared to show cause in the first instance, but was not called upon to argue.

POLLOCK, C. B.:

The case put by my brother BRAMWELL shows what is the meaning of the word " recover," in the 13 & 14 Vict. c. 61, s. 11 (1). It does not mean "recover" by verdict or judgment, but obtain by means of the suit. There ought to be no distinction between the case where a defendant pays money into Court, which is accepted by the plaintiff in satisfaction of his claim, and where the plaintiff goes on to trial and still recovers less than 201. If a defendant paid 107. into Court and the plaintiff recovered by verdict only 51. more, it is admitted that he would not be entitled to costs; whereas it is said that if a defendant paid 157. into Court and the plaintiff accepted it in satisfaction of his claim, he would get his costs. What reason can there be for such a distinction? In each case it would appear by the record that the sum which the plaintiff obtained by the suit was less than 201. It seems to me, therefore, that if a sum not exceeding 207. is paid into Court, and the plaintiff accepts it in satisfaction of his claim, as that is what he was suing for he ought not to have any costs.

I should add, that we are deciding in accordance with the opinion of the Court of Common Pleas in Robertson v. Sterne (2), which is at variance with that of COLERIDGE, J., in Chambers v. Wiles (3); but the former case was decided after full argument and upon consideration, while the latter was the decision of a single Judge in refusing a rule nisi. Therefore, upon authority as well as upon the construction of the Act, this rule must be refused.

MARTIN, B.:

I am of the same opinion. The question turns upon the meaning of the words "shall recover in any action," in the 11th section of the 13 & 14 Vict. c. 61 (1). It seems to me, that if a man brings an action and declares, and the defendant pleads payment of money into Court, and the plaintiff takes it out of Court, he recovers it in that action; for he obtains by means of that action money which he could not obtain without it. That

(1) See note (2), p. 688, ante.

(2) 13 C. B. N. S. 248,

(3) 24 L. J. Q. B. 267.