■f 
 
 ^ 
 

 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nEHORY OF 
 JUDGE DOUQLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daugliter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
KD 4340.072"*" """""'»>' Library 
 "?ffi,.lSS?SL^.«?rm on appea, ,r 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017857156 
 
REGISTRATION CASES. 
 
 REPOHTS OF CASES 
 
 DETERMINED 
 
 ON APPEAL FROM THE DECISIONS OF THE 
 REVISING BAEEISTEES 
 
 IN THE 
 
 COMMON PLEAS 
 
 AND 
 
 QUEEN'S BENCH DIVISIONS 
 
 OF 
 
 THE HIGH COURT OF JUSTICE, 
 
 AND ON APPEAL THEREFROM IN 
 
 THE cbUHT OF APPEAL. 
 
 BY 
 
 F. J. COLTMAN, Esq., 
 
 BABBISTEB-AT-LAW. 
 
 LONDON : 
 STEVENS AND SONS, 119, CHANCEEY LANE. 
 
 1886. 
 
LONDON : 
 
 w. i. eichardson, printee, 4 and 5, great queen street, 
 Lincoln's inn fields, w.c. 
 
JUDGES 
 
 op 
 
 3rf)e Court of appeal 
 
 DUEING THE PEEIOD COMPKISED IN THESE EEPOETS. 
 
 (Subsequent to U & 45 Vict. c. 68.) 
 
 }■• 
 
 Lord Chancellors. 
 
 Earl of Sblbobnb 
 
 Lord Halsbuey" 
 
 Lord GoLERiBGBjt Lord Gliief Justice of England. 
 
 Sir George Jessel 1 
 
 T , -r. ( Masters of the Rolls. 
 
 Lord EsHBR J •" 
 
 Sir James Hannen, President of the Probate, Divorce, and 
 Admiralty Division. 
 
 Sir EiCHAED Bagallat 
 
 Sir George W. "Wilsheb Beamwell 
 
 Sir William Baliol Beett (afterwards 
 Lord Eshee, M.E.) 
 
 Sir Henet Cotton 
 
 Sir EoBEET Lush 
 
 Sir Nathaniel Lindley 
 
 Sir John Holkbe 
 
 Sir Ghaeles S. G. Bowen 
 
 Sir Edwakd Fey 
 
 Ordinary Judges of 
 Court of Appeal. 
 
JUDGES 
 
 OP 
 
 5Ef)e OTommon iPleas Bibision 
 
 OF 
 
 ^\\t Wq^ ©ourt of Justice 
 
 DURING THE PERIOD COMPRISED IN THESE REPORTS. 
 (Before Order in Council of 16th December, 1880, came into Operation.) 
 
 The Right Hon. John Ddkb, Lord Coleridge, L.C.J. 
 
 The Hon. Sir William Robert Gkove, Knt. 
 
 The Hon. George Dbnman. 
 
 The Hon. Sir Nathaniel Lindley, Knt. 
 
 The Hon. Sir Hesry Charles Lopes, Knt. 
 
JUDGES 
 
 OF 
 
 ^Tfte (!^ueen*s iScncf) Bibision 
 
 OF 
 
 2rte il^igf) Court of Justice 
 
 DUEIXG THE PEEIOD COMPEISED IN THESE EEPOETS. 
 (After Order in Council of 16th December, 1880, came into Operation.) 
 
 Tlie Eight Hon. John Duke, Lord Coleeidge, L.C.J. 
 
 The Hon. Sir William Egbert Grove, Knt. 
 
 The Hon. George Denman. 
 
 The Hon. Sir Charles Edward Pollock, Knt. 
 
 The Hon. Sir Nathaniel Lindley, Knt. 
 
 The Hon. Sir "William Vbnteis Field, Knt. 
 
 The Hon. Sir John Walter Htjddleston, Knt. 
 
 The Hon. Sir Henry Manisty, Knt. 
 
 The Hon. Sir Henry Hawkins, Knt. 
 
 The Hon. Sir Henry Charles Lopes, Knt. 
 
 The Hon. Sir Jambs FitzJames Stephen, Knt. 
 
 The Hon. Sir Charles S. C. Bowbn, Knt. 
 
 The Hon. Sir Charles James Watkin Williams, Knt. 
 
 The Hon. Sir James Charles Mathew, Knt. 
 
 The Hon. Sir Lewis Willlam Cave, Knt. 
 
 The Hon. Sir Ford North, Knt. 
 
 The Hon. Sir John Charles Day, Knt. 
 
 The Hon. Sir Archibald Levin Smith, Knt. 
 
 The Hon. Sir Alfred Wills, Knt. 
 
TABLE 
 
 CASES EEPORTED IN THIS VOLUME. 
 
 A. 
 
 
 PAGB 
 
 .F. 
 
 TAGB 
 
 Adams v. Bostock . 
 
 
 275 
 
 Ford V. Barnes 
 
 . 396 
 
 Ailams V. Ford 
 
 
 403 
 
 Ford V. Drew 
 
 1 
 
 Ancketill v. Baylis . 
 
 
 289 
 
 Ford V. Elmsley . 
 
 396, 397 
 
 Aldridge's Case 
 
 
 317 
 
 Ford V. Hoar 
 
 . 351 
 
 Atkinson v. Collard 
 
 
 375 
 
 Foskett V. Kaufman 
 
 . 466 
 
 B. 
 
 
 
 Foster v. Medwin . 
 Fowle V. Trevor 
 
 . ]]8 
 
 . 82 
 
 Banks v. Mansell . 
 
 . 435 
 
 , 439 
 
 Freeman v. Newman 
 
 . 342 
 
 Beam v. Watson . 
 
 . 
 
 268 
 
 Friend v. Towers . 
 
 . 31D 
 
 Blosse V. Wheatley 
 
 
 364 
 
 
 
 Bollen V. Southall . 
 
 , 
 
 368 
 
 G. 
 
 
 Boxall V. Bailey 
 
 , 375 
 
 390 
 
 
 
 Bradley v. Baylis . 
 
 
 163 
 
 Greenway v. Batchelor 
 ridge's Case) 
 
 (Ald- 
 
 . 317 
 
 C. 
 
 
 
 Greenway v. Bat 
 
 chelor 
 
 Chilcott V. BuUen . 
 
 . 
 
 282 
 
 (Jacob's Case) . 
 
 . 322 
 
 D. 
 
 
 
 H. 
 
 
 Baking v. Fraser . 
 
 
 455 
 
 Hall V. Cropper 
 
 20, 29 
 
 Dashwood v. Ayles 
 
 
 486 
 
 Hayward v. Scott . 
 
 . 76 
 
 Down V. Steele 
 
 
 458 
 
 
 
 Druitt V. Lane 
 
 t 
 
 307 
 
 J. 
 
 
 Druitt V. Overseers 
 
 of Clirist- 
 
 
 Jacob's Case . 
 
 . 322 
 
 church 
 
 
 328 
 
 James v. Howarth . 
 
 . 87 
 
TABLE OF CASES. 
 
 Kirby v. Biflfen 
 
 K. 
 
 L. 
 
 Lowcock V. Overseers 
 
 Broughton 
 Lowry v. Collard . 
 
 M. 
 
 Magarrill v. Overseers 
 
 Whitehaven 
 Minifie v. Banger . 
 Morfee v. Novis 
 Mortlock V. Farrer . 
 
 Nuth V. Tamplin . 
 
 PAGE 
 
 163, 174 
 
 of 
 . 335 
 375, 385 
 
 of 
 . 448 
 . 493 
 
 163, 171 
 
 . 20 
 
 249 
 
 
 PAGE 
 
 Pickard v. Baylis . 
 
 . 98 
 
 Porrett v. Lord 
 
 . 46 
 
 S. 
 
 
 Sale, Inre . 
 
 . 152 
 
 Sanders v. Searson 
 
 . 135 
 
 Sanders v. Smith . 
 
 . 150 
 
 Sargent v. Eodd . 
 
 . 14 
 
 Sedgwick v. Neville 
 
 . 375, 387 
 
 Spencer v. Harrison 
 
 . 61 
 
 Stribling v. Halse . 
 
 . 409 
 
 T. 
 
 
 Tanner v. Carter . 
 
 . 435 
 
 W. 
 
 
 Watson V. Black . 
 
 . 418 
 
 Wells «. Stanforth. 
 
 451 
 
ERRATA. 
 
 PagS-86,Jine 17 from top, /or "Appellant," read "Respondent." 
 Page 86, lineTtS-itgm top, for " Respondent," read " Appellant." 
 Page 115, line 9 iromDotbsaXtJor "sub-section 1," read "sub-section 2.' 
 Page 268, line 10 from bottomT/m'-'M^gl," read " 1880." 
 
 Page 282, line 16 from bottom of margin31~»«le,_/or " 41 & 42 Vict. c. 41," read 
 " 41 & 42 Vict. 0. 26." 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 COMMON PLEAS DIYI8M 
 
 OF 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDER STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DURING 
 
 MICHAELMAS SITTINGS, 1879, 
 
 AND 
 
 HILARY SITTINGS, 1880, 
 
 IN THE 
 
 FORTY-THIRD YEAR OF QUEEN VIOTORIA. 
 
 Ford, Appellant ; Drew, Kespondent. 
 A T a Court held for the revision of the list of voters for ^°' S^- 
 
 -^ Nov. 18. 
 
 the city and county of the city of Exeter the respondent's ^ 
 
 Service under 
 
 name appeared on Form D, No. 2, for the parish of St. articles with a 
 
 solicitor in 
 
 Sidwell, on the list of persons entitled to vote at the elec- London inoon- 
 tion of members to serve in Parliament for the said city, constructive 
 as the owner of a freehold rent charge, and the appellant [n 7 miles^f ' 
 duly objected to the respondent's name being retained on '^ ^n^rtided 
 
 clerk, during 
 the first few days of the necessary period for residence, was completing the service 
 under his articles in London, and during the residue of the period was actually-resi- 
 dent within 7 miles of Exeter in his father's house, where a bedroom was at all times 
 reserved for his exclusive use. Held that these facts did not constitute the necessary 
 residence within 2 WilL 4, v. 45, ». 31, to entitle the clerk (though in other respects 
 c[ualified) to be registered as a voter for the parliamentary borough. 
 
MICHAELMAS SITTINGS. 
 
 1879. the said list upon the ground that the respondent had not 
 FoED resided for six calendar months previous to the 15th of 
 Drew. ^^^7' 1879, within the said city or within seven miles 
 thereof 
 
 The following facts were proved: — 
 For a long time previously to the month of May, 
 1878, the respondent had continuously resided at his 
 father's house (which is within seven miles of the said 
 city), as a member of his father's family, and a separate 
 bedroom was set apart for his exclusive use in the said 
 house, and the same room has continued to be so set 
 apart for the respondent's exclusive use, with the right 
 to use it up to the present time whenever he thought 
 fit ; and he has always kept some of his clothes and 
 other property in the said room. 
 
 Some time previously to the said month of May, the 
 respondent had been articled as a clerk to a Mr. Follett, 
 a solicitor at Hxeter, and he had served, within about 
 nine months, the full time of his clerkship under the 
 said articles. 
 
 In the said month of May, in consequence of Mr. 
 Follett having ceased to practise as a solicitor, the 
 respondent (who was then of full age) articled himself 
 to a Mr. Lake, a solicitor in London, for the purpose of 
 completing the unexpired time under his articles to the 
 said Mr. Follett, and the said articles to the said Mr. 
 Lake expired on the 20th January, 1879. 
 
 In the said month of May the respondent went to 
 London for the sole purpose of serving under the said 
 articles to the said Mr. LaJce, and subject thereto he 
 always intended to and did continue his said residence 
 with the right to the said room in his father's house 
 until the present time. 
 
 In the month of August, 1878, and whilst the 
 
XLIII VICTORIA, 
 respondent was serving under his articles to Mr. Lake, 1^79 
 
 he (with Mr. Lake's permission) returned to his father's Ford 
 house for his holidays, and slept in the aforesaid room drew 
 for about three weeks. He then went back to London 
 under the said articles, and remained there until the 
 23rd of January of this year, on which last-named day 
 he came back to his father's house, and has resided 
 therein, and slept in the said room, from thence until 
 the present time. 
 
 The respondent is not married, and has had no other 
 home but the said house of his father, and the said room 
 therein, during the whole time aforesaid, except under 
 the circumstances herein stated, when he was in 
 London serving under his articles. 
 
 The appellant contended that the respondent was not 
 a free agent to return to or reside at his father's house 
 when he was serving under the said articles, and that 
 he had not the right to reside there during that time 
 without the permission of Mr. Lake. 
 
 On behalf of the respondent it was contended that 
 notwithstanding the said articles he had a residence 
 within seven miles of the city of Exeter, and had the 
 right to reside there during six calendar months previous 
 to the 15th of July, 1879. 
 
 The Revising Barrister decided that the respondent's 
 residence was sufficient to satisfy the requirements of the 
 Act, 2 Will. 4, c. 45, s. 31, and he retained his name 
 on the list of voters. 
 
 If the Court should be of opinion that the Revising 
 Barrister's decision was wrong, the register was to be 
 amended by erasing his name from the list. 
 
 Bompas, Q.C., for the appellant. The decision of the 
 
 B 2 
 
MICHAELMAS SITTINGS. 
 
 1879. Revising Barrister was wrong. The respondent during 
 
 FoBD a necessary part of the period for residence was not 
 Debw. residing at his father's house near Exeter, where the 
 qualification was claimed, either actually or construc- 
 tively, but was serving under articles with a solicitor in 
 London. An engagement of that description was, it is 
 submitted, wholly inconsistent with the notion of a 
 continued residence near Exeter. The sum of what can 
 be said on the other side is that the respondent's father 
 had never withdrawn from him the permission to 
 occupy his room when he liked as a member of the 
 family. But Whithorn v. Thomas (a) shows that the 
 mere existence of such a permission, or even of a right 
 by contract, to occupy a bedroom is not enough, 'per se, 
 to constitute constructive residence there. And upon 
 the other hand, not only is it essential that there should 
 be a place of residence always available for the use of 
 the voter — Durant v. Carter (6), Ford v. Pye (c) ; but 
 Powell V. Chiest (d), and Ford v. Hart (e), establish 
 that he must not have deprived himself of the power 
 to make use of it. Thus, in Powell v. Gv£st (d) the 
 vote was disallowed, because the claimant was under- 
 going a sentence of imprisonment during a portion of 
 the necessary period for residence. "While in Ford v. 
 Hart (e) it was disallowed, because the claimant was 
 an ofBcer in the army, compulsorily absent upon 
 service with his regiment. The latter case has, it is 
 submitted, overruled the case of The King v. Mitchell (f), 
 where the vote was allowed to militiamen ; or, if 
 distinguishable from that case, the grounds of dis- 
 
 (a) lLutv}.125;S.C.7M.,S!G.l. (d) Hopw. & Ph. 149 S. C. 18 
 
 (!)) 2 Hopw. & Colt. 142 ; P. C. C. B. N. S. 72. 
 
 L. R. 9 C. P. 261. (c) 2 Hopw. <i Colt. 167 ; S. G 
 
 (c) 2 Hopw. <fe Colt. 157 ; S. 0. L. R. 9 C. P. 273. 
 
 L. R. 9 C. P. 269. (f) 10 East, 511. 
 
XLin VICTORIA, 
 tinction pointed out in Ford v. Hart (a) exist here 1879. 
 
 also. The respondent is not like a person who has an ford 
 
 V. 
 
 interest in the borough, as having a house and family drbw. 
 there, and sharing the public burdens. In this respect 
 the respondent's ease resembles that of the officer in 
 Ford V. Hart (a), who had only rooms reserved for him 
 in his mother's house. Moreover, one who has pre- 
 cluded himself by a contract, extending over a definite 
 term, from returning to a place of residence cannot, it 
 is submitted, be said to have that intention to return 
 which is essential to the notion of constructive resi- 
 dence. In Taylor Y. The Overseers of St. Mary Abbott's, 
 Kensington (b), the ground on which the vote was 
 allowed was, that the voter had not precluded himself 
 by contract from residing at the place where he claimed 
 to be resident. Beat v. Ford (c), the last case on this 
 subject, is not in point, as that was not a case of 
 constructive residence. The voter there was actually 
 resident during the whole of the period, though during 
 a portion of it he was resident in a place from which he 
 was liable to be turned out. 
 
 Buchnill, for the respondent. So far as the question 
 of residence was one of fact, for the Revising Barrister, 
 he has, by his decision, determined it in favour of the 
 respondent. The finding, moreover, is express that 
 subject to the articles the respondent " always intended 
 to, and did continue his said residence with the right to 
 the said room in his father's house." Further it appears 
 that the sole purpose for which the respondent came to 
 London was in order that he might complete the 
 
 (a) 2 Hopw. & OoU. 167 ; S. O. L. R. 6 0. P. 309. 
 L. S. 9 C. P. 273. (c) 2 Hopw. <fc Colt. 374 ; S. 0. 
 
 (6) 1 Sopw. & CoU. 421 -,3.0. 3 C P. D. 73. 
 
MICHAELMAS SITTINGS. 
 
 1879. service under his articles. His home, therefore, 
 
 FoBD remained at Exeter, and it is submitted that that was 
 Drew. also his residence within the meaning of the Reform 
 Act. Distance cannot, it is presumed, afford the test 
 of whether the old residence continued. And yet, if 
 the notion of distance be excluded, hardly a doubt can 
 remain as to the continuity of the residence. If the 
 father's house had been in the neighbourhood of London, 
 as, for instance, at Wvmbledon or Richmond, instead 
 of near Exeter, and the respondent had slept every 
 Saturday and Sunday at home, could any doubt then 
 exist that the old residence continued ? And could it 
 make any difference if the house wei-e somewhat farther 
 off from London, as, for example, at Reading 1 The 
 journey to Exeter might have been performed after office 
 hours on Saturday, and the respondent have been back 
 at the office in due time on Monday. Further, the 
 respondent being of age and sui juris, it lay in his 
 power to return to bis home whenever he liked. His 
 position was not like that of an apprentice, who would 
 be liable to be proceeded against summarily before 
 magistrates for absenting himself without his master's 
 leave. The essentials of residence, as specified in Elliott 
 on Registration, and adopted by Erie, C.J., in 
 Powell V. Guest (a), were satisfied. The respondent by 
 going to Exeter without leave would, at the most, only 
 render himself liable to a civil action for breach of 
 contract, and would not, as in Powell v. Guest (a), 
 become subject to criminal proceedings. That consi- 
 deration also serves to distinguish the case of the military 
 officer. Ford v. Hart (6). A military officer on service 
 
 (tt) Hopw. ^ Ph. 149 ; S. C. 18 (ft) ffopw. <fc Colt. 167 : S. C. L 
 
 C. B. N. S. 72. R. 9 a P. 278. 
 
XLIII VICTORIA. 
 is not swi juris, but would be guilty of a breach of 1879. 
 
 military duty in going away without leave, which would Fokd 
 render him liable to be tried and punished by a court drew. 
 martial. The officer might, no doubt, resign his com- 
 mission, but he could not do that whenever he liked at 
 a moment's notice (a). On the other hand, The King 
 V. Mitchell (b) is strongly in favour of the respondent ; 
 and Whithorn v. Thomas (c) is not at all against him. 
 In Whithorn v. Thomas (c) all that was decided was, 
 that the residence was not bond fide, and not that, if it 
 had been bond fide, it would not in all other respects 
 have sufficed. That is distinctly pointed out by Keating, 
 J., in Bond v. The Overseers of St. George, Hanover 
 Square (d). In Durant v. Garter (e) and Ford v. Pye (/) 
 the voter had given up his house, and could not, there- 
 fore, return to it when he liked. Here the respondent 
 had, as has been already pointed out, not only a dwelling 
 at Exeter, to which he could return, but also the liberty 
 and intention of returning there. 
 
 Bompas, Q.C., in reply. The argument for the re- 
 spondent rests upon the assumption that the distance 
 between London and Exeter is unimportant ; but it is really 
 of the essence of the question. Eesidence at Wimbledon 
 might be practicable consistently with service under 
 the articles ; but residence at Exeter would not be so. 
 Even assuming, for the purpose of argument, that the 
 
 (a) In Attomey-Oeneral V. Howe, See also Pwrher v. Olive, i Surr. 
 
 1 Hw-l. Ji Colt. ^8, Pollock, O.B., 2419; 7irtuev.C!live,i Burr.iiTi. 
 said : " There is this difference (6) 10 East, 511. 
 
 between a civil and a military (c) 1 Lutw. 125 ; S. C 7 M. Jk 
 
 ofBoer : if the latter were to go €f. 1. 
 away, he would be liable to be {d) L. R. 6 C P. 313. 
 
 tried by a court martial, and pun- (e) 2 Hopw. & Colt. 142 ; 5. C. 
 
 ished ; but in the case of a judge, L. E. 9 C. P. 261. 
 it would only be disrespectful not (/) 2 Eopw. tb Colt. 157 ; S. C. 
 
 to tender his resignation and wait L. R. 9 C. P. 269. 
 until his successor was appointed. 
 
MICHAELMAS SITTINGS. 
 
 1879. distinction which has been taken between the compulsion 
 
 FoBD of the criminal law and that of civil proceedings can be 
 Dbew. supported, the question would still remain — Did the 
 respondent intend to live, in the ordinary sense of the 
 word, at Exeter while the service under his articles was 
 continuing ? It is submitted as clear that he did not, 
 and at all events that the presumption must be that he 
 intended to perform his contract,, and not to break it. 
 As to the statement in the case, that " subject to the 
 articles," the respondent intended to continue his resi- 
 dence, that only means that he intended to do so " after 
 the completion of the articles." It clearly cannot mean 
 that he intended anything inconsistent with his service 
 under the articles. 
 
 Geove, J. This case does not appear to me free from 
 doubt, but upon the balance of authorities, I come to the 
 conclusion that the respondent did not reside for six 
 calendar months next previous to the 15th day of July, 
 1879, within seven miles of the city of Exeter. No 
 authority has been cited that is exactly in point. Ford 
 V. Hart (a) comes nearest to the present case ; but there 
 the absence of the voter from the place, where he claimed 
 to be resident, was of a more compulsory character than 
 here; and JDenman, J., while acceding to the judgment 
 of the Court, pointed out that it was not satisfactory in a 
 case of that description to have the case argued only on 
 one side ; still, on the balance of authority, I come to 
 the conclusion here that the respondent had not resided 
 within seven miles of the city of Exeter during the 
 requisite period to satisfy the Act. 
 
 During part of the period for residence, the respondent 
 was serving his articles with a solicitor in London; 
 
 (re) 2 Hopw. & Colt. 167 ; S. C. L. R. 9 C. P. 273. 
 
XLIII VICTORIA, 
 during what exact part of the period he was so serving 1879. 
 
 is not, in my judgment, material. The question rather is, ford 
 how this serving under articles in London affected the Dkew. 
 residence within seven miles of the city of Exeter, on 
 which the respondent had to rely? The respondent 
 relied on a residence at his father's house near Exeter, 
 where a hedroom was set apart for his exclusive use, and 
 as to this, the ease finds that the respondent had " the 
 right to use it up to the present time, whenever he 
 thought fit." I cannot, however, read the case as alleging 
 that the respondent had any absolute legal right to the 
 room in the sense that, if his father had placed a guest 
 there, the respondent could have turned him out of it. 
 He does not appear to have paid any rent for the room, 
 and I conclude that his right to use it was subject to his 
 father's permission. This fact is not altogether unim- 
 portant, because the respondent's residence would thus 
 he dependent on two permissions: first, that of his 
 father ; and secondly, that of the solicitor in London, 
 with whom the respondent was serving his articles. 
 The articles are not before us, but 1 must assume that 
 they are in the usual form ; and as to this, in Pulling' s 
 Law relating to Attorneys, 3rd edition, p. 37, it is said, 
 " no particular form is necessary, but the contract 
 must be a valid subsisting contract during the time it 
 extends to, and bind the clerk for the full prescribed 
 term to serve the master, and that master only, and 
 only in his profession or business of an attorney or 
 solicitor." And in support of that is cited Ex parte 
 Unthank (a). Now, looking at this matter reasonably, 
 and considering that the father's house was near Exeter, 
 it does not appear to me that the respondent, while 
 
 {a) 2 M. &. P. 453. 
 
10 MICHAELMAS SITTINGS. 
 
 1879. serving his articles, could practically have gone down to 
 Ford his father's house without the leave of his master, 
 Drew. except by going away on Saturday evening and returning 
 to London so as to be at the office on Monday morning. 
 It is possible that the respondent might have done that 
 without obtaining permission from his master, but the 
 distance would in all probability have made his doing 
 even that very occasional ; and during five days of the 
 week at least, that is from Monday till Saturday, he 
 could not, without permission, have gone down at all 
 without committing a breach of his contract. Sub- 
 stantially his position was this, that both by agreement 
 and by duty he was bound to serve his master during 
 office hours on the week days, and not to absent himself 
 without permission. The question therefore is, whether 
 this possibility of an occasional visit to his father's house 
 near Exeter could make the respondent resident there 
 within the meaning of the Act? And I am of opinion 
 that it could not. Ford v. Hart (a) is, as I have already 
 said, very similar to the present case, except in the 
 service of a military officer being of a more compulsory 
 character than that of an articled clerk, inasmuch as the 
 officer is liable to be punished by military law for absent- 
 ing himself without permission. The articled clerk is 
 bound by contract to remain in the sei-vice of his master, 
 and in the present case he has done so. It is true that 
 in Powell v. Quest (l), Erie, C. J., seems to have thought 
 that a distinction might exist between the case of a man 
 imprisoned for a criminal offence and one imprisoned for 
 a civil debt, upon the ground that in the latter case the 
 person imprisoned has it in his power to get released. 
 That remark was only an obiter dictwm, and one as to 
 
 (a) 2 Hopu). <t Colt. 167 ; S. C. (i) Hopm. de Ph. US ; S. C. 
 
 L. R. 9 C. L. 273. 18 C. B. N. S. 72. 
 
XLIII VICTORIA. 11 
 
 which there might he much to say on hoth sides ; but at 1879. 
 all events in such a case there is a potentiality of return- foed 
 ing, which in the present case does not exist. Although dJew. 
 a person may have a residence in two places, I cannot 
 think that in the present case the respondent can be said 
 to have had a residence in a place which he could only 
 occasionally visit, and subject, as I have said, to two 
 permissions. If the case were one of first impression, I 
 should say without hesitation and as a matter of common 
 sense, that this was not the respondent's residence. My 
 only difficulty has arisen from the length to which the 
 Courts have carried the doctrine of constructive residence 
 which makes the question not free from doubt ; but 
 although I consider the case an arguable one, I think, 
 on the best judgment I can form, that tbe appellant is 
 entitled to succeed, and that the decision of the Revising 
 Barrister must be reversed. 
 
 LiNDLEY, J. I am of the same opinion. We start 
 with the fact that the respondent did not actually reside 
 within seven miles of the city of Exeter for the whole of 
 the prescribed period, though he did so for nearly the 
 whole of it. How nearly cannot be considered. The ques- 
 tion therefore is, upon what theory is the respondent to 
 be treated, as having done what in fact he did not do, 
 viz., as having resided in Exeter, when in fact he was not 
 there ? As to this, I take the law as stated by Brett, J., in 
 JBond v. The Overseers of St. George, Hanover Square (a), 
 where he cites the following passage from Elliott on 
 Registration, which was adopted by Erie, C.J., in Powell 
 V. Quest (h). " In order to constitute residence a party 
 must possess at the least a sleeping apartment; but 
 
 (a) 1 ffopw. <fe Colt. 431 ; S. C. (6) ffopw. rfc Ph. H9 ; S. C. 18 
 
 L. R. 6 C. P. 314. C. B. N. S. 72. 
 
12 MICHAELMAS SITTINQS. 
 
 1879. an uninterrupted abiding at such dwelling is not requi- 
 
 FoKD site ; absence, no matter bow long, if there be the liberty 
 
 Dkew. of returning at any time, and no abandonment of the 
 
 intention to return whenever it may suit the party's 
 
 pleasure or convenience so to do, will not prevent a 
 
 constructive legal residence." 
 
 In what sense, then, was the respondent at liberty to 
 return? Physically no doubt he was at liberty to return 
 when he pleased ; but the distance between London and 
 Exeter is such that, consistently with the obligations 
 which he had undertaken, he was not at liberty. He 
 could not have done it without a breach of his obligations. 
 Then had he the intention to return ? As to this we 
 must assume his intentions to have been consistent 
 with his legal obligations, not inconsistent with them. I 
 cannot assume that he intended to commit a breach of 
 his contract; and, therefore, I come to the conclusion 
 that, except so far as was consistent with his legal 
 obligations, he had not the intention to return. The 
 absence both of the liberty and intention to return 
 appears to me to dispose of the case. 
 
 Ford V. Hart (a) confirms this view. There the in- 
 ability to return arose from absence on military duty ; 
 and Brett, J., said : " When the person in fact lives else- 
 where, and cannot, by law, return to the borough without 
 permission of another, it seems to me impossible to say 
 that there is an intention to return within the meaning 
 of the terms as applied to the doctrine of constructive 
 residence" (b). The expression "by law" means there, 
 I presume, military law, under which the officer could be 
 arrested and taken back to his regiment. But the 
 principle of that case I think applies to the present, 
 
 (a) 2 Hopw. <fe OoU. 167 ; S. 0. L. R. 9 C. P. 273. 
 (6) L. R. 9 0. P. 276. 
 
XLIII VICTORIA. 13 
 
 viz., that there is the same inability to return consistently 1879. 
 with duty or obligation. In Taylor v. The Overseers of fokd 
 St. Mary Abbotts, Kensington (a), where the vote was Dbew. 
 allowed, it was perfectly consistent with the claimant's 
 attendance on the invalid for whom he was engaged, 
 that he should sleep at home when he pleased, and the 
 ratio decidendi of the case was that the claimant had 
 not bound himself by agreement to sleep elsewhere. 
 Here the respondent had bound himself to reside in 
 London, or sufficiently near to his master's place of 
 business to enable him to perform the duties he had 
 undertaken. 
 
 I am of opinion, therefore, upon these grounds that 
 the decision of the Revising Barrister was wrong, and 
 that it should be reversed. 
 
 Decision reversed. 
 Solicitors — For Appellant, J. E- Fooo d Go. 
 Agents for Ford, Exeter. 
 For Respondent, 8. B. Hamilton. 
 Agent for Friend, Exeter. 
 
 (a) 1 Bopw. <fc Colt. 421, 426 ; S. 0. L. K. 6 C. P. 309, 311. 
 
14 MICHAELMAS SITTINGS. 
 
 Sakgent, Appellant ; Rodd, Respondent. 
 
 1879. AT a Court held for the revision of the lists of voters 
 
 Nov. 20. -^ 
 
 for the parliamentary borough of Liskeard, in the 
 
 An objector county of Cornwall, the respondent objected to the 
 seT/as^on'^e appellant's name being retained in the list of persons 
 list of parha- entitled to vote at the election of a member to serve 
 
 mentaryvoters 
 
 tor "the parish jq Parliament for that borough. 
 
 of the borough 
 
 of L., Division It was Urged on the part of the appellant that the 
 
 I." The par- 
 liamentary notices of objection served respectively upon the 
 
 consists of 3 appellant and upon the overseers were both bad ; but 
 
 separate 'over- ^^ Revising Barrister held them sufficient and valid, 
 
 oTth^e one^^' subject to a case (so far as material) as follows : — 
 
 cipalbormTgh '^^^ notice of objection served upon the appellant 
 
 (consistins*or (^^1*^11 ^he case set out) was signed by the respondent 
 
 the part of the tJmg ; 
 
 parish of L. 
 
 outside the " (Signed) William Rodd, 
 
 municipal 
 
 borough) is " Of Higher Lux Street, on the list of Parlia- 
 
 known as "the » i • i <• i 
 
 pariah of L." mentary Voters for the parish of the 
 
 notice referred " borough of Liskeavd, Divisiou I." 
 
 ^Bttrtfe^'''' The notice of objection served upon the overseers 
 
 not to "the 
 
 parish of L.," 
 
 but to the municipal borough. 
 
■ XLIII VICTORIA. 15 
 
 (which the case also set out) was addressed to " The 1879. 
 Overseers of the parish of the borough of Liskeard," Sargent 
 
 V. 
 
 and the objector signed and described himself therein Eodd. 
 in the same way as in the notice to the party. 
 
 The parliamentary borough of Liskeard consists of — 
 First, the municipal borough of Liskeard, which is 
 within and forms part of the parish of Liskeard, but 
 has sc'.parate parochial officers and rates ; Secondly, so 
 much of the parish of Liskeard as is not within the 
 municipal borough of Liskeard, and which has separate 
 parochial officers and rates ; and Thirdly, a part of the 
 parish of Saint Clear, which has also separate parochial 
 officers and rates. 
 
 For the purpose of distinction, the part of the 
 parliamentary borough firstly hereinbefore described is 
 known as and called " the borough of Liskeard," and 
 the known description of the parochial authorities 
 of that part is " The Overseers of the borough of 
 Liskeard ; " whilst the part secondly hereinbefore de- 
 scribed is known as " the parish of Liskeard," and the 
 overseers of such part are known and described as " The 
 Overseers of the parish of Liskeard." 
 
 For the purposes of Parliamentary and Municipal 
 Revision there are in " the borough of Liskeard " the 
 following lists, namely, the General List of £10 house- 
 holders and inhabitant occupiers, divided in accordance 
 with the requirements of the Parliamentai-y and 
 Municipal Registration Act, 1878, sec. 15, sub-sections 
 2—7, into 3 divisions ; and the List of Lodgers, made by 
 the overseers in pursuance of sec. 22 of the last-named 
 
 Act. 
 
 The notice of objection served on the overseers was 
 duly published by them. 
 
16 MICHAELMAS SITTINGS. 
 
 1879. It was urged on the part of the appellant that both 
 
 Sakgent the above-mentioned notices of objection were bad, 
 KoDD. because {inter alia) the description of the objector was 
 incorrect, insufficient, and misleading, there being, it 
 was contended, no such list as " the List of Parliament- 
 ary Voters for the parish of the borough of Liskeard, 
 Division I ; " and as regards the notice of objection to 
 overseers, it was contended that the expression, " the 
 Overseers of the parish of the borough of Liskeard," 
 contained in the address to the notice, did not describe 
 sufficiently or correctly the persons to whom such 
 notice should be addressed. 
 
 The respondent contended, on the other hand, that 
 the notice of objection containing the description of the 
 objector followed the precise words of Form (I), No. 2, 
 in the Schedule of the Parliamentary and Municipal 
 Registration Act, 1878, and that the words " for the 
 parish of the borough of Liskeard " were in accordance 
 with the definition of the term " parish," as defined in 
 sec. 4 of the said Act. 
 
 The Eevising Barrister was of opinion that the 
 notices of objection were both sufficient, and expunged 
 the appellant's name from the list. 
 
 Charles, Q.C., for the appellant. The description of 
 the objector as on the list of parliamentary voters " for 
 the parish of the borough of Lislceard " is ambiguous 
 and misleading. Those words may refer either to the 
 parish of Liskeard, as being a parish which forms part 
 of the parliamentary borough of Liskeard, or they mav 
 with less accuracy refer to the municipal borough. But 
 it is impossible to say with certainty to what they refer. 
 Moon V. Andrew (a) is not in point. There there was 
 
 (a) 1 Hopw. S[ OoU. 75; S. C. L. R. i C. P. 461. 
 
XLIII VICTORIA. 17 
 
 no room for the ambiguity which arises here, because 1879. 
 in that case there was no parish of Penryn lying, either Saksent 
 wholly or partly, outside the area of the municipal Rodd. 
 borough of Penryn. Here the proper course for the 
 objector would have been to omit the word " parish " 
 altogether, and to have simply described himself as on 
 the list of parliamentary voters " for the borough of 
 Liskeard." In Tudball v. The Town Clerk of Bristol {a) 
 a too rigid adherence to the form in the schedule was 
 held to vitiate the description. 
 
 [Lord CoLERinGE. In that case the description was 
 misleading.] 
 
 It is submitted that it is equally misleading here. The 
 respondent should have adapted the form to the cir- 
 cumstances of his case. Sec. 8 of 41 & 42 Vict. c. 26, 
 expressly prescribes the use of the forms in the 
 schedule, or forms to the like effect, varied ,as cir- 
 cumstances require. 
 
 [Lord Coleridge, C.J. The borough of Liskeard 
 is a " parish " within the express definition of that 
 word in sec. 4 of 41 & 42 Vict. c. 26. j 
 
 So also is the parish of Liskeard. But Crowther v. 
 Bradney (b)- shows that where the description given by 
 the objector of the list on which his name appears 
 leaves it uncertain to which of two lists he refers, that 
 circumstance is fatal to the notice of objection. 
 
 [Lord Coleridge, C.J. On what principle do you 
 say that " the parish oi Liskeard" can be understood 
 
 (a) 1 Lutw. 7; S. O. 5 M. <t (b) ffopw. <t- Ph. 63 ; S. 0. 15 
 
 6. 5. 0. B. N. S. 536. 
 
 \ 
 
V. 
 EODD, 
 
 18 MICHAELMAS SITTINGS. 
 
 1879. to mean " the parish of the borough of Liskeard," when 
 Sargent " the parish of Liskeard" is not a borough ?] 
 
 The parish forms part of the parliamentary borough. 
 
 £. Clarke, Q.C., for the respondent, was not called 
 upon. 
 
 Lord Coleridge, C.J. I am of opinion that the 
 decision of the Revising Barrister must be affirmed. 
 The facts are as follows : — The parliamentary borough 
 of Liskeard consists of three localities, each of which 
 has separate overseers and rates. Of these one is called 
 the borough of Liskeard, and another the parish of 
 Liskeard. The objector, in his notice of objection, 
 having to describe the parish list on which his name 
 is to be found, describes it as the list " for the parish 
 of the borough of Liskeard." Now, inasmuch as the 
 borough of Liskeard has separate overseers and rates, 
 the borough of Liskeard is correctly described as a 
 parish, being a "parish" within the express definition 
 of the Act (a). The description of the objector is 
 therefore in strict accordance both with the terms of 
 the Act and the form which it prescribes. It is sug- 
 gested, however, that although that is so, yet if the 
 description be misleading, that would vitiate the notice, 
 and that here the description is misleading. I should cer- 
 tainly hesitate before coming to that conclusion, where, as 
 in the present case, the Act has been strictly followed. 
 But here it is plain that no one could possibly have 
 been misled. Although the borough and parish of 
 Liskeard are both parishes in law, " the parish of 
 
 (fl) 41 & 42 Vict. 0. 26, s. 4. 
 
XLIII VICTORIA. 19 
 
 Liskeard" is not a borough. Mr. Charles wsts driven 1879. 
 to contend that the words "parish of the borough of Saboemt 
 Liskeard " would naturally point to " the parish of Roim. 
 Liskeard," or, in other words, to what is a parish, but 
 is not a borough. But to that argument I am unable 
 to accede. 
 
 Denman and Lindley, JJ., concurred. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Young, Jones & Co., 
 Agents for 
 Rogers & Son, Helston. 
 
 For Respondent, BeU & Steward, 
 
 Agents for 
 Carlyon & Stephens, St. Austell. 
 
 2 
 
20 MIf'HAELMAS SITTINGS. 
 
 MoRTLOCK, Appellant; Farber, Respondent. 
 HA.LL, Appellant ; Cropper, Respondent. 
 
 MoRTLOCK V. FaRRER. 
 
 1879. A''^ * Court held by the Eevising Barrister, appointed 
 
 ]fov^. *'° I'evise the lists of voters for the city of Westminster, 
 
 In the borough the appellant objected to the name of Thomas Allen, of 
 
 formsof notice ^ „ . , „ . , 
 
 of objection 79, Berwtclc Street, being retained upon the list of 
 given in^Porm persons, who being on the register of voters in force for 
 Parliamen- ^^ parliamentary borough of Westm,inster, in respect 
 Mraiidpal °^ residence in lodgings within the parish of St James, 
 A^t'm*s°th claimed in respect of residence in the same lodgings to 
 list of parlia- have their names inserted in the list of persons entitled 
 
 mentary voters 
 
 (which, if , to vote at the election of two members to serve in 
 
 there are more _ 
 
 lists than one, Parliament for the said borough. 
 
 these forms The notice of objection given by the appellant was, 
 
 specified) is ^ ^0 ^^1' ^^ ^^ nocessary to be stated, as follows : — 
 
 any particular " To Mr. Thomas Allen. 
 
 list indicating "I hereby give you notice that I object to your name 
 
 qualification being retained on the list of persons entitled to vote as 
 
 under which ' 
 
 the name of 
 
 the person objected to appears. 
 
 Semite, that the corresponding note to the municipal forms of notice of objection 
 (Nos. 3 and 4) (whatever its meaning may be), does not mean that the parish list 
 should be specified, any more than the note to the parliamentary forms. 
 
XLIII VICTORIA. 
 
 21 
 
 lodgers at the election of members to serve iu Parlia- 1879. 
 ment for the city of Westminster, on the following Mobtlook 
 grounds" (which the notice then proceeded to state). Fakeee. 
 
 " Dated this 25th day Aug. 1879. 
 
 (Signed) " Joseph Mortlock, 
 " Of No. 6, Cambridge Villas, Waterford Road, Fulham. 
 
 " On the list of voters (for No. 7, North Street) for the 
 parish of St. John the Evangelist (called List No. 3) " ; 
 and was regular in all respects except in the following 
 particulars, namely, 
 
 The said Thomas Allen objected that such notice 
 was invalid and void in law, inasmuch as it did not 
 specify upon which list of persons entitled to vote as 
 lodgers for the election of members for the said borough 
 his name appeared. 
 
 There are eleyen parishes and precincts within the 
 said borough, each having its own overseers ; but for 
 one of such precincts there was on the register of voters 
 in force no lodger. 
 
 As to the remaining ten parishes or precincts, the 
 overseers of each parish or precinct made out, in 
 obedience to the 22nd section of the Parliamentary and 
 Municipal Kegistration Act, 1878, such a list as is 
 mentioned in the first paragraph of the case. 
 
 The names of four hundred other persons whose 
 names were set out in the schedule were objected to 
 under similar circumstances. 
 
 The Revising Barrister decided that the said notices 
 of objection ought to have specified upon which of the 
 said ten lists respectively the names of the persons so 
 objected to appeared. 
 
 The Revising Barrister was requested by the objector. 
 
22 MICHAELMAS SITTINGS. 
 
 1879. nevertheless, to go into the merits of the various ob- 
 
 MoRTLooK jections, but this was opposed on behalf of the parties 
 
 rAEKBB. objected to, and the Revising Barrister declined to do so. 
 
 If the Court should be of opinion that the decision of 
 
 the Revising Barrister was wrong, the register was to 
 
 be amended by erasing the name of the said Thomas 
 
 Allen and the names of the said four hundred other 
 
 persons from the list, unless it should be of opinion 
 
 that, regard being had to ihe facts herein stated, those 
 
 names ought, nevertheless, to be retained on the list. 
 
 The Solicitor-General {Sir H. Giffard), (Douglas 
 Kingsford with him), for the appellant. In this case 
 the Revising Barrister has held, wrongly, as the ap- 
 pellant contends, that the notice of objection ought to 
 have specified the parish list on which the name of the 
 person objected to appeared. It is submitted that that 
 requirement is in no case necessary; and, at all events, 
 that it cannot be so here, where the person objected to 
 is a lodger, for in the case of a lodger the absence of 
 such information cannot possibly be misleading. A 
 lodger, if entered on the list of voters by the overseers, 
 must necessarily be aware on what parish list he has been 
 entered before he receives the notice of objection. That 
 this must be so is evident from the steps which a lodger 
 is obliged to take in order to get his name entered upon 
 the lists by the overseers. The enactments on this 
 subject are as follows : — Sec. 4 of 30 & 31 Vict. c. 102, 
 created the lodger franchise. Sec. 30, sub-section 2, 
 provided that the lodger should renew his claim to be 
 registered in every year, and gave a form of claim for 
 use which is addressed to the overseers of the parish. 
 The 41 & 42 Vici. c. 26, introduced a new form of claim 
 
XLIII VICTORIA. 23 
 
 (Form H, No. 2), slightly modifying the original one, 1879. 
 but in no way affecting the present argument. Then mortlock 
 sec. 22 enabled persons, already on the register for fabker. 
 lodgings, to claim before the 25th of July in respect of 
 the same lodgings, and required the overseers to make 
 out before the 31st of July a list of all persons who had 
 so claimed. Now, bearing in mind that no man is ever 
 qualified as a lodger in more than one place at a time, 
 inasmuch as he must reside for one year at least in the 
 same lodgings in order to be qualified, it follows from the 
 necessity of a lodger making his claim in each year to the 
 overseers of a particular parish, that he must necessarily 
 know on what parish list his lodger qualification is 
 entered, and consequently to what parish list the objec- 
 tion to him, as a lodger, relates. No doubt it will be 
 said, on the other side, that the whole question here 
 turns on the meaning of the word " list " in the note to 
 Form I, Nos. 1 and 2, in the schedule to 41 & 42 Vict. 
 c. 26. That that is so is not denied. But unless the 
 Court feel constrained to do so by the language of the 
 enactment, they will hesitate to affix a meaning to the 
 word " list," which would necessitate a particularity in 
 the notice, which in terms is not required, and which, 
 where the person objected to is a lodger, would make a 
 perfectly useless formality imperative. It is true that 
 in the county form of notice of objection to the party, 
 the parish where the qualification objected to is situate 
 is expressly required to be specified. That circumstance, 
 however, affords a strong argument for the appellant, 
 since where the requirement has been thought essential 
 it has been expressly made. The reason assigned for 
 such a requirement in counties, viz., to prevent the hard- 
 ship which might be entailed on a person who had 
 
24 MICHAELMAS SITTINGS. 
 
 1879. several qualifications in different parishes, if he did not 
 MoETLooK know which qualification was ohjected to, cannot apply 
 Fabbbb. ■"'ith at all tie same force in boroughs ; and in the case 
 of a lodger it is quite inapplicable. The question, how- 
 ever, no doubt is, to what requirement do the words of 
 the note to Form I, " If there is more than one list of 
 parliamentary voters, the notice of objection .... 
 should specify the list," point? It is submitted that 
 they point to information as to the class of qualification 
 objected to ; whether, for instance, it be that of an 
 occupier, lodger, or freeman, and not to information as 
 to the parish where the qualification is situate. It is 
 true that the note goes on to state that " if the list 
 referred to is made out in divisions, the notice of objec- 
 tion should specify the division to which the objection 
 refers." Those divisions, however, have clearly no re- 
 ference to any question of dividing the list of voters 
 according to localities. They simply refer to the three 
 divisions which are to be made of the list, under the 
 provisions of sec. 15, where a municipal and parlia- 
 mentary borough are, in whole or in part, co-extensive, 
 the only object of those divisions being to enable the 
 parliamentary and municipal lists to be made out 
 tog^ether by the overseers, and revised at one time by 
 the Revising Barrister. The mode of arranging such a 
 list in divisions is shown in Form D, in the schedule. 
 Westminster not being a municipal borough, the list in 
 the present case is, of course, not made out in divisions, 
 and consequently that provision of the note is inapplic- 
 able. The appellant no doubt contelids, as one branch 
 of his argument, that the lodger list for the whole 
 borough forms but one list, and that the same thing is 
 .true of the occupiers' list, and in boroughs where such 
 
XLIII VICTORIA. 25 
 
 qualifications exist, of the list of freemen and of 1879. 
 the list of voters in respect of other reserved rights. Moetlook 
 Where the Legislature has intended the parochial taerer. 
 division of the list to he specified, the require- 
 ment that it should he specified has been expressly 
 made. Thus, in the very form of objection now under 
 discussion, the objector is required to state not only 
 his place of abode, but the list of the particular parish 
 on which his name appears, the object of that provision 
 being to enable the person objected to to ascertain 
 with as much ease as possible whether the objector is 
 or is not a person qualified to object. That the lodger 
 list was intended by the Legislature to he a separate list 
 is manifest from the following provisions : 30 & 31 Vict. 
 c. 102, s. 30, sub-s. 2 ; 31 & 32 Vict. c. 58, s. 20; and 
 41 & 42 Vict. c. 26, s. 22 ; and from the forms in the 
 schedule to the last-mentioned Act. (See Form D, No. 3, 
 and note to Form L.) The appellant contends, firstly, as 
 a general proposition, that the notice of objection need 
 in no case specify the parish list to which the objection 
 relates ; but, secondly, he submits that in the case of a 
 lodger, at all events, it is unnecessary that it should do so. 
 
 a. S. Wright, for the respondent. The whole question 
 here turns on the meaning to b^ assigned to the word 
 " list " in the note to Form I, Nos. 1 and 2, in the 
 schedule to 41 & 42 Vict. c. 26. That word must have 
 the same meaning assigned to it, whatever be the 
 character of the qualification to which the objection 
 relates. It cannot have one meaning assigned to it 
 when the objection is to a lodger, and another when it 
 is to an occupier. Now, although when a man is 
 objected to as a lodger, information as to the parish to 
 
V. 
 
 Farbeb 
 
 26 MICHAELMAS kSITTINGS. 
 
 1879. which the objection relates, would not in general be of 
 MoBTLocK importance, it would be otherwise when a man is ob- 
 jected to as the occupier of a house or warehouse, since 
 he might have several such qualifications in different 
 parishes, and there would be nothing in the notice to 
 inform him to which of them the objection referred. 
 The word "list," it is submitted, is far more naturally 
 interpreted as referring to what is an actual thing, viz., 
 the parish list which the overseers make out, than as 
 referring to that which on the other side is contended to 
 be its meaning, viz., an imaginary list, made up of all 
 the parish lists throughout the borough. The argument 
 for the respondent, however, which is of the most weight, 
 is founded on the corresponding note to the municipal 
 forms of objection (Nos. 3 and 4). That note is word 
 for word in the same terms as the note which is now 
 under discussion. The appellant's construction, if 
 right, must apply to both these notes equally. But 
 that construction, when applied to the note to the 
 municipal forms, renders it absolutely meaningless, 
 inasmuch as there is but one kind of qualification for 
 burgesses known to the law, viz., that created under the 
 Municipal Corporation Acts, and consequently, on the 
 appellant's construction, there never can by any possi- 
 bility be more than one burgess list. The note to the 
 municipal forms cannot have been framed on the 
 assumption that the list required to be made out under 
 sec. 19 is to be regarded as a burgess list, since by the 
 express terms of that section, the list so made out is a 
 list of persons "entitled to be elected councillors or 
 aldermen, but not entitled to be on the burgess roll." 
 
 \_Sir H. Giffard suggested, as one explanation of the 
 
XLIII VICTORIA. 27 
 
 note, that several kinds of lists are made out in the 1879. 
 
 city of London.] Mobtlook 
 
 That explanation will not solve the difficulty, for 
 although the city of London is a "parliamentary 
 borough " within the interpretation clause of 41 & 42 
 Vict. c. 26 (a), it is not a municipal borough in the 
 sense in which " municipal borough " is defined in the 
 same section. Then as to the machinery prescribed by 
 41 & 42 Vict. c. 26. The whole of that machinery 
 points to the " list " being parochial. Sec. 15 regulates 
 the mode of making out the general occupation list. 
 This is to be done by " the overseers of every parish." 
 Sub-sections 2, 6 and 6 each mention " the list for the 
 ^parish," and it is " the list for the parish " which, 
 under sub-section 2, is to be made out in divisions 
 wherever a parliamentary and municipal borough have 
 any common area. Again, in see. 22 we find mention of 
 another parish list, which has to be made out by 
 overseers, viz., the list of lodgers upon the previous 
 register, who before the 25th of July have claimed in 
 respect of the same lodgings. Then the precept to be 
 issued by the town clerk to the overseers (Form A in 
 the schedule) prescribes seriati/m the different lists to 
 be made out by overseers, all of which are regulated 
 parochially, and have to be published by each set of 
 overseers in their respective parishes. As regards 
 authorities, none are directly in point ; but in Wansey v. 
 Perkins, Quigley's Case (b), it seems to have been 
 
 (a) Sec. 4 enacts: "In this Act or riding, part, or division of a 
 
 . . . . the term ' parliamen- county at large. The term ' muni- 
 
 tary borough ' means any borough, cipal borough ' means any place 
 
 city, county of a city, county of a for the time being subject to the 
 
 town, place, or combination of Mimicipal Corporation Acts." 
 places returning a member or (b) 7 M. d; G. 136 ; S. 0, 1 
 
 members to serve in Parliament, Lutw. 241. 
 and not being a county at large, 
 
 v. 
 Fabbeb. 
 
28 MICHAELMAS SITTINGS. 
 
 1879. assumed by the Court that "list" was equivalent to 
 MoBTLocK parish list. Tindal, C.J., there (a) said : " The difficulty 
 Parker, which, as you contend is thrown upon the voter, is, 
 that he may not be aware to what parish list the ob- 
 jection applies, and that he may have to hunt over 
 several lists." That case arose under the 6 & 7 Vict. 
 c. 18 ; but No. 10 in Schedule B of that Act, which was 
 the form of notice of objection to be given to overseers, 
 had a note appended to it, similar in terms to that now 
 under discussion. 
 
 [Lord CoLBEiDGE, C.J. In that case the notice of 
 objection was held to be good, although it did not 
 specify the parish.] 
 
 But the ground of decision was that the note applied 
 only to cases where the overseers have to make out more 
 than one list in their parish, whereas that was a case 
 which arose in the city of London, where the overseers 
 at that time < had but one list to make out. So far as 
 the notice to overseers was concerned, there was in that 
 case no necessity to specify to what parish list the 
 objection referred, inasmuch as the notice itself gave 
 the requisite information on that point, by being 
 addressed to the overseers of the parish who had made 
 out the list in question. It is quite true that the Court 
 also held there that the ncTtice to the party need not 
 specify the parish list, but that was because the note in 
 the schedule of that Act of Parliament was held not to 
 apply to the notice to the party, but only to the notice 
 to the overseers. The Legislature have now remedied 
 the inconvenience thus caused, by making the note in 
 Form I (41 & 42 Vict. c. 26) applicable to both forms 
 (a) 7 M. & a. p. 136. 
 
XLril VICTORIA. 
 
 29 
 
 of notice of objection, thus doing what in Wansey v. 1879. 
 
 V. 
 
 Farker. 
 
 Perkins, Quigley's Gase (a), Tindal, C.J., seemed to mortlook 
 think that Parliament would itself have done, if atten- 
 tion had been called to the point when the Act was 
 being passed. 
 
 The Solicitor-General replied. 
 
 Hall v. Cropper. 
 
 AT the revision of the parliamentary and municipal 
 lists for the borough of Nottingham, objection was made 
 to the name of Arthur Bosworth being retained upon 
 the list of persons entitled both to be registered as a 
 parliamentary voter in respect of the occupation of pro- 
 perty situate within the parish of St. Mary, in the said 
 borough, and to be enrolled as burgesses for the 
 municipal borough, in respect of the occupation of pro- 
 perty situate within the said parish. 
 
 The entry so objected to upon the list for the said 
 parish (Division 1) was as follows : 
 
 "Arthur Bosworth, 2, Ivy Row. House, 2, Ivy Row." 
 
 Various other persons were likewise objected to, whose 
 names and particulars of whose qualifications appeared 
 in the schedule annexed to the case, as also the particular 
 lists upon which their names appeared. 
 
 The Eevising Barrister held that the notice of objec- 
 tion to Arthur Bosworth, and also to all the other 
 persons, were bad in law upon the facts and for the 
 reason hereinafter appearing. Due notice of appeal was 
 given on behalf of the objectors in the case of all the 
 
 («) 1 M.&G.UO; S.0.1 Lutw. 244. 
 
 Hah 
 
 V. 
 
 Cropper. 
 
30 MICHAELMAS SITTINGS. 
 
 1879. objections so disallowed, and the Revising Barrister 
 Hall declared that all the said appeals depended upon the 
 Chopper, same decision and ought to be consolidated. 
 
 Tlie borough of Nottingham, is a parliamentary and 
 municipal borough. The parliamentary borough consists 
 of the parishes of St. Mary, St. Peter, St. Nicholas. 
 The municipal borough consists of those parishes and 
 certain other adjoining parishes or parts of parishes. 
 
 The overseers of each of the parishes of St. Mary, 
 St. Peter, and St. Nicholas respectively, published for 
 the purposes of the registration of 1879 separate lists 
 for each parish, namely, in each parish a list of the 
 persons entitled both to be registered as parliamentary 
 voters, and to be enrolled as burgesses in respect of the 
 occupation of property (Division 1) ; also of the persons 
 entitled to be enrolled as burgesses, but not to be re- 
 gistered as parliamentary voters (Division 3). They also 
 published in each parish a list of lodgers who had 
 claimed under the provisions of the Parliamentary and 
 Municipal Registration Act, 1878, sec. 22 ; and a list 
 of persons entitled to the parliamentary franchise as 
 freeholders (the ownership of freehold property being a 
 qualification for a parliamentary vote in the borough of 
 Nottingham). 
 
 It did not appear that there were any persons (other 
 than lodgers) entitled to be registered as parliamentary 
 voters in respect of the occupation of property, but not 
 to be enrolled as burgesses, and no division of the list 
 in respect of g-ny such was made. The objection in 
 question related to persons upon Division 1 of the lists 
 in each parish, and also to persons on the lists of free- 
 holders and lodgers as specified. 
 ^ The notices of objection in all the cases were duly 
 
XLIII VICTORIA. 31 
 
 served, and the objections were sufficient and sufficiently 1879. 
 proved to disentitle the persons objected to from being re- Hall 
 tained on the lists in question, subject inter alia to the croppbb. 
 following objection to the form of the notices of objection. 
 
 It was objected that the notices of objection to the 
 parties did not specify the list to which the objection 
 referred, as required by the note to Form I, for the 
 following reason : — 
 
 The said notices to the parties did not specify the 
 list for any particular parish in the borough as the list 
 to which the objections referred, but merely referred to 
 the list of persons entitled to vote as occupiers, or as 
 freeholders, or as lodgers, as the case might be, for the 
 borough (parliamentary or municipal) generally. 
 
 The Kevising Barrister decided in favour of the 
 objection, being of opinion that, having regard to the 
 words in the note to Form I, "if the list referred to 
 is made out in divisions, the notice of objection should 
 specify the division," and to the fact that it is the list 
 for the parish that is directed to be made out in divisions 
 by the 2nd sub-section of the 1 5th section aforesaid, 
 the list for each parish must be taken to be a separate 
 list for the purposes of the words " if there is more 
 than one list of parliamentary voters " in the note to 
 Form. I. 
 
 It was not shown that, in the particular cases objected 
 to, the party objected to was upon the list in any but 
 one parish. 
 
 The Revising Barrister retained the names of the 
 parties objected to, as aforesaid, on the list ; and the 
 question raised was whether he was right in so doing. 
 
 Ridley, for the appellant. This case is identical with 
 the last, except in the circumstance that the notices of 
 
32 MK^HAELMAS SITTINGS. 
 
 1879. objection here do not, as in the last case, relate ex- 
 Hall clusively to lodgers. The arguments, therefore, which 
 Crop'pek. ha.ye been relied on in the last case to support the 
 validity of the notice need not be repeated, though, in 
 so far as they suggest the possibility of a distinction 
 between the case of a lodger and an occupier, it is with 
 confidence submitted that no sound distinction exists. 
 That the whole question must depend on the meaning 
 of the word " list " in the note to Form I, Nos. 1 and 2, 
 in the schedule to 41 & 42 Vict. c. 26, seems on all 
 hands to be admitted, and " list " cannot have one 
 meaning assigned to it, where the objection is to a 
 lodger, and another, where it is to an occupier. Further, 
 it is submitted that the word "list" cannot have one 
 meaning when the note is applied to Form I, No. 1 
 (the notice to overseers), and another meaning when it 
 is applied to Form I, No. 2 (the notice to the party). 
 For the words of the note are, " if there is more than 
 one list of parliamentary voters, the notice of objection 
 in each of the above two cases, Nos 1 and 2, should 
 specify the list to "which the objection refers." If, 
 therefore, "list" means qualification list in No. 1, it 
 must have the same meaning in No. 2 also. But in 
 the last case it was virtually admitted on the part 
 of the respondent, that in the application of the 
 note to Form I, No. 1, the "list" required to he 
 specified must be a qualification list, and could not 
 be a parish list; the reason being, that it would 
 have been absurd for the note to require the paro- 
 chiality of the list, to which the objection referred, to 
 be specified in a notice addressed to the overseers of 
 the parish, who would, of course, have no concern with 
 any lists but those which they had themselves made out 
 
XLIir VICTORIA. 33 
 
 for their particular parish. Indeed, upon this point the 1 879. 
 case of Wansey v. Perkins, Quigley'a Case (a), is an hall 
 authority so far as regards the construction of similar cbopper. 
 words in the former Act (6 & 7 Vict. c. 18, Schedule 
 B., No. 10, note). And in regard to the suggestion 
 which has been made of hardship, it may be well to 
 quote the opinion expressed-in that case by Tindal, C.J., 
 which was as follows : " There is no very great hardship 
 imposed on a party who has received a notice of objec- 
 tion, in the first place to make some inquiry of the 
 objector, or to go himself, or to send some one else, to 
 examine the list of the parties objected to in the parish 
 in which he may have property." That the Legislature 
 has expressly required the word " parish " to be inserted, 
 where there is any real necessity for its insertion, has 
 been already pointed out in the argument of the preced- 
 ing case. 
 
 Graham, for the respondent. The language of the 
 note under discussion, though similar to, and no doubt 
 borrowed from the note appended to No. 10, in Schedule 
 B. of 6 & 7 Vict. c. 18, is not wholly identical with it. 
 The Court is for the first time called upon to put a 
 construction on the note now in question, and the 
 circumstances are entirely different from those under 
 which any former case has been decided. Moreover, in 
 construing this note, it must be remembered that the 
 whole course of legislation since the Reform Act has been 
 to increase the particularity of what the difi'erent forms 
 of notice of objection should contain, and diminish the 
 trouble to those to whom such notices are sent. Of 
 this, the present case is an illustration. Thus, on 
 
 (a) 1 Lviii: 235; S. C. 7 M. k G. 127. 
 
 VOL. I. P 
 
V. 
 
 Ceoppek. 
 
 34, MICHAELMAS SITTINGS. 
 
 1879. referring back to the Eeform Act (2 Will. 4, c. 45), it 
 Hall will be found that that Act contained no direction at 
 all that the list, to which the objection referred, should 
 be specified. That inconvenience was remedied partially, 
 that is, so far as it affected the notice to overseers, by 
 the note above referred to (6 & 7 Vict. c. 18, No. 10 in 
 Schedule B.). But as regards the notice to the party, the 
 inconvenience remained. It was to remedy that incon- 
 venience that the note to Form I, Nos. 1 and 2 in the 
 Schedule to 41 & 42 Vict. c. 26, was framed. And the 
 Court in construing that note will, it is submitted, give 
 effect to the intention of the Legislature by holding that 
 the notice to the party should specify not merely the par- 
 ticular head of qualification, but the particular parish list, 
 to which the objection refers. Stress has been laid by 
 the other side on the circumstance that in the county 
 form of notice of objection to the party the require- 
 ment as to specifying the parish list is express; but the 
 reason for that was, that at the time when the 6 & 7 
 Vict. c. 18 passed, there was but one qualification list 
 in counties, and consequently in the case of counties it 
 was enough to require the parish list to be particularized, 
 and a note similar to that which has been appended 
 to the borough forms was in the case of counties 
 unnecessary. Wansey v. Perkins, Quigley's Case (a) 
 has been relied on, by the other side, as an authority 
 that the hst required to be specified in the notice to 
 overseers is not a list for any particular parish. But in 
 Wansey \. Perkins, Quigley's Case (a), the Court did not 
 decide that the list referred to in the notice to overseers 
 was not a parish list, but only that it need not be 
 expressly stated to be so, because the paroohiality of 
 
 (a) 1 Lutw. 236; S. C. 7 M. & G. 127. 
 
XLIII VICTORIA. 35 
 
 the list sufficiently appeared from the circumstance of 1879. 
 the notice being addressed to the overseers of the hall 
 parish. The note to Form I speaks of the list being cboppeb. 
 made out in divisions. What is the list which is to be 
 so made out ? Section 15, sub-section 2, shows beyond 
 doubt that it is " the list for the parish." Moon v. 
 Andrew (a) throws light on the meaning of the word 
 " list," since " list " was there held to mean parish list, 
 upon the ground that the Registration Acts expressly 
 enjoin the making out of parish listSj but do not enjoin 
 the making out of any " list " for the borough. That 
 decision, it is submitted, is in accordance with the 
 whole scope of the Registration Acts, which throughout 
 treat the machinery of the lists as something strictly 
 parochial. It is therefore submitted that in the 
 present case the notice of objection ought to have 
 specified the list for the particular parish, and that, not 
 having done so, it is bad. 
 
 Douglas Kingsford appeared for the Town Clerk of 
 Nottingham (who had also been made a respondent), but 
 did not argue, the Court intimating that the Town 
 Clerk would not be visited with costs, if he stood 
 neutral between the parties. 
 
 Ridley, in reply (being requested by the Court to 
 confine his argument to the point raised by Mr. Wright 
 as to the construction of the note to the municipal 
 forms of objection), suggested that, as the object of the 
 Act was to assimilate the procedure of parliamentary 
 and municipal registration, the note had probably been 
 copied from that appended to the parliamentary forms, 
 
 (o) 1 ffopw. k Cdt. 75, 79 J S. 0. L. R. i O. P. 461, 463. 
 
36 
 
 MICHAELMAS SITTINGS. 
 
 1879. without su£5ciently considering whether there was any 
 case to which the earlier words of it would apply, when 
 construed with reference to the municipal forms. 
 
 MORTLOOK 
 V. 
 
 Fabbeb. 
 Hall 
 
 V. 
 
 Cboppek. 
 
 Lord CoLEBiDGK, C.J. I am of opinion that in both 
 of these cases the decisions of the Kevising Barrister 
 were wrong, and must be reversed. The notice of objec- 
 tion in each case follows the exact words of the form, 
 and is dated and signed by the objector in precise 
 accordance with it. The only difference between the 
 two cases — though in law I think, this constitutes no 
 difference — is that, whereas in the first case the entry 
 objected to is that of a lodger, in the second, among 
 other entries objected to, is that of an occupier. 
 
 The objection which was taken to these notices de- 
 pends on the words of a note, which will be found 
 appended to Nos. 1 and 2 of Form I of the Parlia- 
 mentary and Municipal Registration Act, 1S78. The 
 words of the note are as follows: "If there is more 
 than one list of parliamentary voters, the notice of 
 objection in each of the above two cases, Nos 1 and 2, 
 should specify the list to which the objection refers ; and 
 if the list referred to is made out in divisions, the notice 
 of objection should specify the division to which the 
 objection refers." No. 1 is the form of notice to be given 
 to the overseers ; No. 2, that to the person objected to. 
 And the question for our determination is the mean- 
 ing of the word "list" in the above note. 
 
 On the part of the appellants it was argued that the 
 
 lists of parliamentary voters for a borough are made up 
 
 of persons who are qualified to vote in respect of different 
 
 kinds of franchises, e.g., householders, lodgers, voters in 
 
 , respect of reserved rights, freemen. Consequently, that 
 
XLIII VICTORIA. 
 
 37 
 
 the lists referred to in the note are lists arranged under 1879. 
 
 V. 
 
 Fabreb. 
 Hall 
 
 V. 
 
 Cboffer. 
 
 separate headings according to the diilerent kinds of moetlook 
 franchise ; and that the information to which the person 
 objected to is entitled, is to which list, having regard to 
 the diversities of the franchise, the objection is made. 
 
 On the other hand, for the respondents it was argued, 
 that as in many boroughs there are more parishes than 
 one, while in each parish the overseers have to make 
 out a list, subdivisible though it may be under different 
 heads of franchise, and as the voter may be qualified 
 for the borough franchise in more parishes than one, it 
 is therefore right that he should have information as to 
 the particular parish list to which the objection is made. 
 
 If the respondents are right in this contention, they 
 are entitled to succeed, for it is not contended that in 
 either of these cases the notices of objection conveyed 
 any such information. 
 
 If the Legislature had left me to construe this notice 
 wholly vsithout assistance, I admit that there might be 
 much to be said on each side of the question. But both 
 interpretations cannot be correct ; and on reading the 
 note I find, firstly, that it is appended to two forms of 
 notices, " Nos. 1 and 2," and that it specifically refers 
 to " each of the above two cases.'' I must therefore in- 
 terpret it in such a way as will give it a reasonable 
 construction in its application' to each form of notice. 
 That gives me one help in arriving at its construction, 
 but it is not the only help. Another help is, that the 
 note in speaking of the list being " made out in 
 divisions," manifestly intended to confine the use of 
 the word " divisions " to the three sorts of divisions 
 enumerated in section 15. Now these consist, firstly, 
 of persons entitled to be registered both as parliamentary 
 
38 
 
 MICHAELMAS SITTINGS. 
 
 V. 
 
 Fabbub. 
 
 Hall 
 
 V. 
 
 Ckoppee, 
 
 1879. voters and burgesses ; secondly, of those entitled as 
 MoETLooK parliamentary voters only; and, thirdly, of those entitled 
 as burgesses only. Here, therefore, I have 'a statutory 
 interpretation of the word " division," showing that the 
 Legislature did not intend th^t word to have anything 
 of a parochial meaning, but that it contemplated a 
 division to be made by the overseers in the way I have 
 pointed out in their respective parishes. 
 
 But the argument does not rest there, for the Act 
 itself refers us to the earlier Eegistration Act, passed in 
 the year 1843, which was an Act very carefully drawn, and 
 which established, so to speak, a code on the subject of 
 registration, and which has since been the subject of 
 numerous decisions. The Act of 1878, after specifically 
 defining certain terms, proceeds expressly to enact (a) that 
 " other terms used in this Act have the same meaning 
 as in the Parliamentary Eegistration Acts ;" the principal 
 Registration Act being the Act of 1843. Now the Act 
 of 1843 dealt both with county and borough registration, 
 and gave in schedules a variety of forms for use in 
 counties and boroughs, the forms for use in counties 
 being kept carefully distinct from the forms for use in 
 boroughs. Among the forms so given we find forms 
 of notices of objection to overseers, and parties, in 
 counties ; and forms of notices of objection to overseers, 
 and parties, in boroughs. Beginning then with the 
 county form of notice of objection to overseers, we find 
 that in mentioning the list it is silent as to the parish. 
 For this it is said that there was a good reason, because 
 the overseers are officers having jurisdiction within the 
 local area of a parish, and consequently a notice to them 
 
 (a) Sec. i. 
 
XLIII VICTORIA. 
 
 39 
 
 must have reference to something within that area. 1879. 
 
 Turning next to the county form of notice of objection Mobtlook 
 
 V. 
 
 to the party, we find that in the body of the notice Fakbeb. 
 there is an express direction that the parish shall be y. 
 
 inserted, and therefore without that insertion that notice ^'''o^^^- 
 would be bad. But when we come to the forms of 
 notice of objection in boroughs, we find not a word about 
 the parochiality of the list either in the notice of objec- 
 tion to the overseers or to the party. As regards the 
 notice to the overseers the same observations, no doubt, 
 apply as in the case of counties. But as regards the 
 notice to the party, the silence of the Act is the more 
 remarkable, because in the same Act, where the notice 
 of objection is to a county voter, there is the express 
 direction that the parish shall be inserted. 
 
 Such then being the form of the notices under the 
 Act of 1843, we find this further : whereas under that 
 Act a note — that, if there were more than one list of 
 voters, the notice of objection should specify the list 
 to which the objection referred — was appended to the 
 borough form of notice of objection to overseers, but 
 not to that to the party ; now, under the Act of 1878, a 
 note in the same terms is appended to both forms, and 
 is expressly made applicable " in each of the above two 
 cases," that is to say, not only in the notice of objection 
 to overseers, but also in the notice of objection to the 
 party. The later Act uses the words of the earlier one, 
 adopts the terms of its notices, and its terms are by 
 express enactment to receive the same construction as 
 in the earlier Act. In the earlier Act, inasmuch as the 
 note was appended only to the notice to overseers, it 
 would have been impossible to construe the word "list" 
 otherwise than as the appellants contend it should be 
 construed here; while in the later Act it is quite possible 
 
40 
 
 MICHAELMAS SITTINGS. 
 
 1879. 
 
 MOBTLOCK 
 V. 
 
 Fasbeb. 
 Hall 
 
 V. 
 
 Cboppeb. 
 
 to construe it as it must have been construed in the 
 earlier. The words of the note are the same in both 
 Acts, and in pari materid, and I therefore think it 
 more reasonable to give both Acts the same construction, 
 than to do the violence to language which would be 
 involved in construing them differently. 
 
 Two authorities have been cited. But one of them, 
 Moon V. Andrew (a), does not appear to me at all in 
 point. The question there was as to the description of 
 an objector, who had described himself as on the list of 
 voters for the borough of Penryn, and the only question 
 was, whether he had sufiBciently described the parish list 
 o;n which his name appeared, to satisfy the words of the 
 form. The parliamentary borough of Penryn is made 
 up of a variety of parishes, one of which is styled the 
 borough of Penryn, and all that the Court decided 
 was that under the circumstances of that case the 
 word " borough " meant " parish." The other case, 
 Wansey v. Pet kins (b), appears to me very much in the 
 appellants' favour. It is true that it arose in London, 
 where the overseers had but one list to make out, the 
 other lists being made out by other ofBcials. But in 
 deciding that case the Court held this, that a notice of 
 objection to overseers, which did not specify any par- 
 ticular list, was good for this reason, that the notice could 
 only apply to the only list which the overseers made out. 
 And the judgment of Tindal, C.J., shows strongly that, 
 so far as hardship is concerned, there was, according 
 to his view, no real necessity for any mention of the 
 locality of the qualification in the case of a borough 
 voter. In the case of a county voter, who has fre- 
 quently several qualifications in different parishes, some 
 
 (a) 1 Hopw. & Colt. 75 ; S. C. L. 
 R. 4 C. P. 461. 
 
 (6) 1 Lutw. 285 ; S.C. 7 M. J: 
 0. 127. 
 
XLIII VICTORIA. 
 
 41 
 
 hardship might indeed arise. But here I do not 
 think that it could — certainly not in the case of a 
 lodger, a person who cannot either obtain or retain his 
 qualification without making yearly a local claim upon 
 local officials, and who cannot be in any doubt as to the 
 locality of the qualification which is objected to, since 
 no man is a lodger in two places at the same time. In 
 the case of a freeman there is no difficulty; and though 
 there might possibly be some hardship in the case of an 
 occupier, it is hard to conceive that there could be much. 
 It is possible, no doubt, that an occupier might in some 
 cases have two or three qualifications in the same 
 borough ; but the answer to that objection is given by 
 Tvndal, C.J., in Wansey v. Perkins, Quigley's Case (a), 
 viz., that the person objected to can make inquiry of 
 the objector, or examine the list of the parties objected 
 to in the parishes in which he may have property. I 
 therefore arrive at the conclusion that "the list to which 
 the objection refers," which the Legislature has required 
 to be specified, is the list indicating the character of the 
 qualification. 
 
 I should, indeed, be very clearly of the opinion I have 
 expressed, if it were not for the difficulty which Mr. 
 Wright has pointed out, arising on the construction of 
 the note appended to the two forms of municipal objection. 
 The construction of that note is certainly not free from 
 difficulty. For the reasons already given, I do not think 
 it can mean that the parochial list should be specified, 
 and I confess (though it is a somewhat humiliating con- 
 fession) that I am unable to say what its meaning is. 
 That difficulty, however, is not to my mind so great as to 
 overbear the far greater difficulties which the respond- 
 ents' construction would entail, from the violence 
 
 1879. 
 
 MOKTLOCK 
 V. 
 
 Faekee. 
 
 Hall 
 
 v. 
 
 Cboppek. 
 
 {») 1 lAiiw. 2ii, 245 ; S. a M. & G. 140, 141. 
 
42 
 
 MICHAELMAS SITTINGS. 
 
 1879. 
 
 MOETLOOK 
 V. 
 
 Paeeee. 
 Hall 
 
 V. 
 
 Ceoppek. 
 
 which must be done to the language of the note I have 
 discussed, if that construction were adopted. 
 
 In both cases, therefore, I am of opinion that the 
 appeals should be allowed, and the decisions of the 
 Revising Barristers reversed. 
 
 Grove, J. I am of the same opinion. At first, 
 indeed, the arguments appeared to me very evenly 
 balanced, and I should have had great difficulty in 
 coming to a conclusion if it had not been for the matter 
 which Mr. Ridley has pointed out, viz., that the note to 
 the parliamentary forms of notice given in Form I 
 applies, not merely in general terms, but specifically to 
 " the notice of objection in each of the above two cases, 
 Nos. 1 and 2." Now, as regards its construction, when 
 applied to the notice to overseers, it is to be observed, 
 in the first place, that overseers must know for what 
 parish they act ; and, secondly, that the prescribed form 
 of notice to them is in terms addressed to the overseers 
 of the parish. If, therefore, the requirement as to 
 specifying the list means that the parochial list must be 
 specified, such a requirement, as applied to a notice 
 to overseers, is wholly unmeaning. The Lord Chief 
 Justice has already pointed out that this note is virtually 
 a copy of a note in the former Act, which was not ap- 
 pended to the form of notice to the party, but only to 
 the form of notice to overseers, and in which, therefore, 
 the words "more than one list" could only have reference 
 to different classes of qualification. The two Acts being 
 in 'pari materid, a strong argument arises that Parlia- 
 ment, in thus repeating the same language, must have 
 meant that it should receive the same interpretation. 
 The language is not mere general language, but very 
 specific in its terms, and is expressly made applicable in 
 
XLIII VICTORIA. 
 
 43 
 
 both cases, i.e., both in the case of the notice to over- 1879. 
 
 seers, and also in that of the notice to the party ; and I Mortlook 
 cannot think that such specific language has been used -fahkkr. 
 carelessly. The argument for the respondents could y 
 
 only be made to prevail by construing the words " more Ceoppbb. 
 than one list " as meaning more than one list in respect 
 of the different kinds of franchise when applying them 
 to the notice to overseers, while attributing to them a 
 parochial meaning when applying them to the notice to 
 the party ; in other words, by giving to the same words a 
 different meaning in the same sentence. That result of the 
 respondents' argument has led me to the conclusion that 
 the appellants are in both cases entitled to our judgment. 
 I own, however, that I was impressed by the difficulty 
 which Mr. Wright has pointed out as to the construction 
 of the corresponding note to the municipal forms. The 
 argument, which is founded on that note, is that if the 
 appellants' construction prevail, there cannot in any 
 case be more than one burgess list. At first, indeed, 
 I thought that that difficulty might be got over by the 
 consideration that, where the list is made out in divisions, 
 Divisions 1 and 3 may each be called a list of burgesses. 
 But on reading the subsequent part of this note, I find 
 that the case of a division of the list is expressly pro- 
 vided for. I cannot, therefore, interpret the word "list" 
 as meaning "diyision," when* the Act itself has pointedly 
 drawn the distinction between the two words. It is 
 possible indeed that some kind of municipal list may 
 exist of which I am not aware, but at present I do not 
 see my way to interpreting this note satisfactorily. I do 
 not think that we can take refuge , in Mr. Ridley's sug- 
 gestion, that the words were either introduced per in- 
 curiam, or that they were due to some error. Still the 
 difficulty thus created does not appear to me sufficiently 
 
44 
 
 MICHAELMAS SITTINGS. 
 
 1879. strong to outweigh the argument on the other side, which 
 MoKTLooK is based on the similarity of the two Acts, and on the 
 Farkbb. general reasoning which arises upon them. By constru- 
 ^^^ ing the words " more than one list " as meaning different 
 Oboppeb. franchise lists, we obtain a construction which is reason- 
 able, and which we cannot obtain in any other mode. 
 
 LiNDLEY, J. I am of the same opinion. The question 
 turns on the true construction of the note to Form I, 
 Nos. 1 and 2, in the schedule of the Parliamentary and 
 Municipal Eegistration Act, 1878, which by sec. 8 is to 
 " be construed and have effect as if enacted in the body " 
 of the Act. The difficulty arises on the words " if there 
 is more than one list of parliamentary voters." This 
 there may be under more circumstances than one. There 
 may be several lists, either because there are more 
 parishes than one in the borough, or because there is 
 within the parish more than one qualification list. 
 
 Mr. Ridley's argument is, I think, unanswerable, that 
 if the word "list" in the note under consideration be 
 applied to the notice to overseers, it can only refer to a 
 list made out by the overseers to whom the notice is sent, 
 since it cannot without absurdity be referred to any 
 list made out by other overseers. Therefore, as applied 
 to that notice, at all events, the word " list " must mean 
 " qualification list." Then, having got the meaning of 
 the word in that case, it would be a strong thing to 
 hold that in the other case, viz., that of the notice to the 
 party, it meant something different, for this would be to 
 use the same word in two different senses in one sentence. 
 Mr. Graham contends that the object of the note is to 
 give the same amount of information to the party as to the 
 overseers, but the answer to that argument to my mind 
 is that we cannot adopt Mr. Graham's interpretation 
 
XLIII VICTORIA. 
 
 46 
 
 without straining language in a way which I do not feel 
 at liberty to do. There is also this further observation, 
 that in the very forms we are discussing the objector is 
 required to state on what parish list his name appears, 
 so that when the parish is intended to be specified 
 there is an express provision on the subject. The only 
 difficulty that weighs with me is that which Mr, Wright 
 has pointed out, as to the proper construction of the 
 note to Fd^m I, Nos. 3 and 4 ; and as to that note I 
 must confess that I do not pretend to understand its 
 full meaning. But I cannot on that ground adopt Mr. 
 Wright's argument that we are bound to do violence to 
 what appears to me the plain construction of the note 
 under discussion ; and I think Mr. Wright's argument 
 is open to this retort that the result of doing what he 
 asks would be to render that note unmeaning. 
 
 In both cases, therefore, I am of opinion that the 
 decisions of the Revising Barristers were wrong, and 
 that they should be reversed. 
 
 Lord CoLBEiDGE, C.J. The parties having taken 
 their stand on a technical objection, which has failed, 
 their names must be struck out, and (except as against 
 the Town Clerk, in Hall v. Cropper) with costs in 
 both cases. 
 
 Decisions reversed with costs 
 and names ordered to be 
 struck out accordingly. 
 
 Solicitors — For Appellant, in Mortlock v. Farrer, 
 Rogerson, Ford & Co. 
 
 For Respondent, Farrer. 
 
 For Appellant, in ITaU v. Cropper, 
 
 Ellis, Munday & Co. 
 For Respondent, Torr & Co. 
 
 1879. 
 
 MOBTLOCK 
 V. 
 
 Faebbr. 
 Hall 
 
 V. 
 
 Obopper. 
 
46 
 
 MICHAELMAS SITTINGS. 
 
 1879;, 
 
 Nov. 18., 
 Dec. 6. 
 
 In a "declara- 
 tion for cor- 
 recting misde- 
 scription," 
 made under 
 see. 24 of 41 
 & 42 Vict^ c. 
 26, a borough 
 voter (whose 
 quaKfication 
 appeared on 
 the list of 
 voters as 
 " house," " 8, 
 Birley Place"), 
 stated the 
 correct parti- 
 culars of bis 
 qualification 
 to be " houses 
 in succession," 
 "8, Birley 
 Place, and 9, 
 Birley Place." 
 Held, that the 
 Bevising Bar- 
 rister had no 
 power to 
 amend the list 
 in these parti- 
 culars, as the 
 proposed addi- 
 tion in the 4th 
 column would 
 not constitute 
 a better 
 identification 
 of the pro- 
 perty, but a 
 change in the 
 described 
 qualification. 
 
 PoRRETT, Appellant ; Lord, Eespondent. 
 
 A T the revision of the list of persons entitled hoth to 
 he registered as parliamentary voters and to he enrolled 
 as burgesses in Division 1 for the township of Burnley, 
 within the parliamentary and municipal borough of 
 Burnley, the respondent duly objected to 'the name of 
 Arthur Speight Ludlow being retained on such list. 
 
 Copies of the notices of objection, both parliamentary 
 and municipal, were set out in the case, and the grounds 
 of objection were, inter alia, that the nature of the 
 voter's qualification, and the name and situation of the 
 qualifying property, were not correctly described. 
 
 He was described on the list thus — 
 
 No. 
 
 Names of Voters in 
 
 full, Siiroame being 
 
 first. 
 
 Place of Abode. 
 
 Nature of Quali- 
 fication. 
 
 Name and Situ- 
 ation of quali- 
 fying Property. 
 
 218 
 
 Ludlow, Arthur 
 Speight. 
 
 S,Bwley 
 Place. 
 
 House. 
 
 8, Birley 
 Place. 
 
 He had duly delivered to the Town Clerk for the 
 borough of Burnley, on the 12th of September, 1879, 
 two declarations, such declarations being duly indorsed 
 and initialed by him. 
 The first declaration was as follows : — 
 
 "St. Andrew's Polling District. 
 
 " Parliamentary, No. 218. 
 
 " Declaration for correcting misdescription in the list. 
 
XIUI VICTORIA. 
 
 47 
 
 " I, Arthur Speight Liodlam, of No. 9, Birley Place, 
 in the parish or township of Burnley, in the parlia- 
 mentary borough of Burnley, do solemnly and sincerely 
 declare as follows : — 
 
 " 1. I am the person referred to in the list of parlia- 
 mentary voters made out for the parish or township of 
 Burnley by an entry as follows : — 
 " Division 1. 
 
 1879. 
 
 PORRETT 
 V. 
 
 Lord. 
 
 Name as de- Place of Abode as 
 scribed iu List. described in List. 
 
 Nature of Qualifica- 
 
 tiou as described 
 
 iu List, 
 
 Name and Situation 
 
 of qualifying 
 
 property. 
 
 Ludlow Arthur g, Birley Place. 
 Speif/kt. * 
 
 House. 
 
 8, Birley Place. 
 
 " 2. My correct name, and place of abode, and the 
 correct particulars respecting my qualification are, and 
 ought to be stated for the purposes of the register about 
 to be made up of voters for the parliamentary borough 
 of Burnley, as follows : — 
 
 " Division 1. 
 
 Correct Name. 
 
 Correct Place of 
 Abode. 
 
 Correct Nature of 
 Qualification. 
 
 Correct Name and 
 Situation of quali- 
 fying Property. 
 
 Dudlam Arthur 9 ^^y^^ pi^^ 
 Speu/kf. " 
 
 Houses in 
 succession. 
 
 8, Birley Place,a.^Or 
 9, Birley Place. 
 
 " Dated this 9th day of September, 1879. 
 
 ( Signed) " Arthur Speight Ludlam." 
 "Made and subscribed before 
 me, this 9th day of September, 
 1879. 
 
 " T. F. Arlindale, 
 "A Commissioner to adminis- 
 ter Oaths in the Supreme Court 
 of Judicature in England." 
 
POKRETT 
 V. 
 
 Lord. 
 
 48 MICHAELMAS SITTINGS. 
 
 1879. The second declaration was for the correction of the 
 
 list of burgesses for the municipal borough, but in other 
 respects was identical with the first. 
 
 No eridence was given before the Revising Barrister, 
 other than the said declarations, that the premises in 
 question had been occupied in immediate succession, 
 nor did the voter appear by himself, or by any person 
 on his behalf. 
 
 The Revising Barrister was of opinion that, as the 
 declarations proposed to substitute a new and different 
 qualification in the place of that which was described in 
 the list of voters, it was beyond the scope and meaning 
 of sec. 24, of 41 & 42 Vict. c. 26, which was confined 
 to misdescription, and that he had no power to sub- 
 stitute such other and new qualification, and amend the 
 said list of voters as required by the person making the 
 said declarations, who should have sent in a claim, 
 which might have been the subject of objection in open 
 court. 
 
 The Revising Barrister therefore held that the said 
 person was not entitled to be retained on the said list, 
 and expunged his name therefrom. 
 
 The names of thirty-four other persons were expunged 
 under similar circumstances, 
 
 -R. H. Collins, for the appellant. The Revising 
 Barrister had power to receive the appellant's decla- 
 ration in evidence, and in accordance therewith to 
 correct the description in the fourth column by the 
 addition of the second house. The power to make 
 such a correction is, as the appellant submits, given 
 by sec. 28, of 41 & 42 Vict. c. 26. That section has, 
 so far as regards borough revision, been substituted 
 
XLIII VICTORIA. 49 
 
 for section 40 of 6 & 7 Vict. c. 18, and has con- 1879. 
 siderably enlarged the powers of amendment which porkett 
 previously existed. Before discussing those powers, how- loed. 
 ever, it will be desirable to refer, in the first instance, to 
 sec. 24, which throws a good deal of light on sec. 28. 
 The effect of sec. 24 is to enable any person on the list 
 of voters in any way affected by an erroneous entry in 
 the list, to make a declaration, the object of such declara- 
 tion being to get the error corrected by the Revising 
 Barrister, when revising the list. Errors in the state- 
 ment of the qualification, of which the present ease affords 
 an example, are among the errors expressly provided 
 for by the 24th section. Before the 41 & 42 Vict. 
 c. 26 passed, the course, where an error had been made 
 in the list in the statement of anyone's qualification, was 
 for the person affected by it to claim under sec. 15 of 
 6 & 7 Vict. c. 18 ; but the way in which that provision 
 worked defectively was that, as the 25th of August was the 
 last day allowed both for making claims and objections, an 
 objector might abstain from calling attention to an error 
 in the list, until it was too late for the person objected 
 to to make a claim. But sec. 24 of 41 & 42 Vict. c. 
 26, has cured that defect. It enacts that " any person 
 
 who is entered on any list of voters and 
 
 whose name or place of abode, or the nature of whose 
 qualification, or the name or situation of whose quali- 
 fying property is not correctly stated in such list, or in 
 respect of whom there is any other error or omission in 
 the said list," may make a declaration according to a 
 form in the schedule, and send it to the Town Clerk on 
 or before the 12th of September. The terms of that 
 section seem wide enough to cover every kind of mistake. 
 Even as the law stood, before the 41 & 42 Vict. c. 26 
 
30 MICHAELMAS SITTINGS. 
 
 1879. passed, " house" was held to be a sufficient description 
 PoREETT iu the third column of the nature of the qualification, 
 
 LoKD. where houses were successively occupied, upon the 
 gi'ound that the occupation of " houses in succession " 
 constitutes a house qualification {Hitchvnsv. Brown) {a). 
 The only point, therefore, which seems to require con- 
 sideration, is, whether the mention of but one house in 
 the fourth column is still, as it must be admitted that 
 it would have been before the 41 & 42 Vict. c. 26 passed, 
 a fatal objection, or whether the omission of the second 
 house can now be supplied under that Act, by virtue of the 
 appellant's declaration. The contention for the appellant 
 is that it can, upon the ground that either there is in the 
 list an incorrect statement of the "situation of" the 
 " qualifying property," or an " error or omission," within 
 the meaning of the 24th section. That the Legislature 
 intended a wider class of errors than heretofore to be 
 aided by these declarations seems strongly borne out by 
 comparing with sec. 24, the narrower language of sec. 10 
 of 28 & 29 Vict. c. 36, which only permits declarations 
 to be made by county voters in cases where the place of 
 abode of the voter requires correction. But, next, we 
 have to consider the difierenpes of language between the 
 41 & 42 Vict. c. 26, s. 28, and 6 & 7 Vict. c. 18, s. 40. 
 Sec. 40 of 6 & 7 Vict. c. 18 had a proviso that " no 
 evidence shall be given of any other qualification than 
 that which is described in the list of voters or claim, as 
 the case may be ; nor shall the Barrister bo at liberty to 
 change the description of the qualification as it appears 
 in the list, except for the purpose of more clearly and 
 accurately defining the same." That proviso is repeated 
 in 41 & 42 Vict. c. 26, s. 28, sub-sec. 13, virtually in 
 
 (a) 1 Lutw. 328 : S. 0. 2 C. B. 25. 
 
XLIII VICTORIA. 51 
 
 the same terms, but their effect is controlled by the 1879. 
 words, except as herein p7vmded, with which the sub- Porebtt 
 section commences. In order, therefore, to ascertain Lobd. 
 what changes in the description of the qualification the 
 new Act has allowed to be introduced, it becomes neces- 
 sary to examine the previous sub-sections. Sub-sec- 
 tions 6 and 12 are both material. Sub-section 6, after 
 specifying various matters, as to which an amendment 
 may, as heretofore, be made, in language very similar to 
 6 & 7 Vict. c. 18, s. 40, proceeds to authorise in general 
 language, which is not contained in the earlier Act, the 
 insertion of " any other " omitted " particulars " " by law 
 required to be stated." 
 
 [Gkove, J. The words of the section are " any other 
 particulars respecting whom," which must apply to a 
 person, not a thing.] 
 
 The language is, no doubt, somewhat peculiar. Parti- 
 culars of the voter's qualification must, however, it is 
 submitted, be regarded as particulars respecting the 
 voter within the meaning of the sub-section. But the 
 key to interpreting that clause correctly is to be found 
 in section 24, for the Court will not, it is presumed, 
 cut down the operation of section 24 by narrowing the 
 powers of the Revising Barrister under section 28. 
 
 [Grove, J. The argument on the other side will, I 
 presume, be that this is not a case of merely amending 
 an incorrect statement, but of changing the qualifica- 
 tion.] 
 
 Even assuming that the insertion here proposed does 
 amount to a change in the description of the qualifi- 
 
 E 2 
 
52 MICHAELMAS SITTINGS. 
 
 1879. cation, it is submitted that such a change is within the 
 PoERETT powers of the Kevising Barrister. Form M, in the 
 
 Lord. schedule to 41 & 42 Vict. c. 26, shows that " shop," " 2, 
 Shire Lane," may be corrected to " house," " 24, Shire 
 Lane," an amendment which, it is submitted, alters the 
 description of the qualification, at least, as much as the 
 addition of a second house in the description of the 
 local situation. Then sub-section 12 expressly provides 
 that "where the matter .... proved to the 
 Eevising Barrister, in relation to any alleged right to be 
 on any list, is in the judgment of the Revising Barrister 
 insufficient in law to constitute a qualification of the 
 nature or description stated or claimed, but sufficient in 
 law to constitute a qualification of some other nature or 
 description," which is the case here (only one bouse 
 being stated in the list, while the proof adduced is of 
 two houses in succession), " the" Revising Barrister, if 
 the name is entered in a list for which such true qualifi- 
 cation in law is appropriate, shall correct such entry by 
 inserting such qualification accordingly." The opera- 
 tion of that section is clearly not restricted to cases of 
 transfer from one list to another, for the words as to 
 transfers only occur subsequently to what has been 
 read, being as follows : " And in any other case shall 
 insert the name with such qualification in the appro- 
 priate list." 
 
 It is therefore submitted that the Revising Barrister 
 bad, either under sub-section 6 or sub-section 12, the 
 power to amend, and that the words of exception, at the 
 commencement of sub-section 13, must be held to 
 except such a case as this from the operation of that 
 sub- section. 
 
 Mellor,Q,.G., for the respondent. The argument for 
 
XLIII VICTORIA. 53 
 
 the appellant, if successful, would seriously affect what 1879. 
 has always been considered an essential rule of registra- Porhiitt 
 tion law, wherever a different qualification is relied on lokd. 
 from that which the overseers have inserted in their 
 lists. The 6 & 7 Vict. c. 18, s. 15, provides that " every 
 person desirous of being registered for a different quali- 
 fication than that for which his name appears in the 
 said list," shall claim on or before the 25th of August. 
 But, if the appellant's argument be correct, hereafter 
 that requirement need in no case be complied with. All 
 that need in future be done, where the voter changes his 
 qualification, \?ill be to make a declaration of misdescrip- 
 tion under section 24 of 41 & 42 Vict. c. 26. The 
 Legislature can never have contemplated so complete 
 a subversion of the law of registration, nor would the 
 Court, it is apprehended, be disposed to place so novel 
 a construction on the Act of Parliament, unless con- 
 strained to do so by language of the most explicit 
 character. But the language of 41 & 42 Vict. c. 26 
 contains nothing whatever to warrant such a construc- 
 tion. Section 24, which is the section mainly relied on 
 to extend the Kevising Barrister's powers, in no way 
 deals with his powers of amendment. It deals merely 
 with the mode of proof where a correction has to be 
 made in the list. Formerly, in such a case, the personal 
 attendance of the voter would have been required in 
 the Court of Revision, to prove such facts as might be 
 necessary to authorise the correction. But section 24 
 relieves the voter from such attendance by enacting that 
 " the Eevising Barrister shall receive the declaration as 
 evidence of the facts declared to." The language of sec- 
 tion 24, and of Form M, in the schedule, both clearly 
 indicate that the operation of section 24 is confined to 
 
V. 
 IiOBU. 
 
 54 , MICHAELMAS SITTINGS. 
 
 1879. cases of misdescription, and has no reference whatever 
 PoRKETT to cases where the object in view is to change the quali- 
 cation. The section of the new Act, which regulates 
 the Eevising Barrister's powers of amendment, is section 
 28; but that section, though substituted in boroughs 
 for section 40 of 6 & 7 Vict. c. 18, does not enlarge the 
 powers of amendment which previously existed. The 
 power given under the did law in section 40 of 6 & 7 
 Vict. c. 18, to correct " any mistake " would, it is sub- 
 mitted, ha'TO authorised the correction of any such mis- 
 description as Form M indicates may now be made. 
 For example, " shop " might have been changed into 
 " house," or the number of the house altered, then as 
 now, provided the qualification which the building re- 
 presented remained unchanged. For that proposition, 
 Bendle v. Watson (a), is an authority. In Bendle v. 
 Wntson (a), the number of the qualifying house was 
 wrongly described, owing to the number having been 
 changed by the local authority, so that it was clearly a 
 case not of vagueness of description, but of actual mis- 
 description; but it was held, nevertheless, that the 
 Eevising Barrister should have made the amendment. 
 On the other hand, the cases of Bartlett v. Gilhs (h), and 
 Onions v. Bowdler (c), clearly established under the old 
 law that in a case like the present, where the effect of 
 the amendment would be to change the qualification, 
 such an amendment could not be made. The extent to 
 which the description of the qualification may be changed 
 is limited by section 28, sub-section 13, of 41 & 42 Vict. 
 c. 26, in precisely the same language as in section 40 of 
 
 (a) 1 Hopw. <t Colt. 591 ; 5. 0. (c) 2 lutw. 59 ; S. C. 5 0. B. 
 
 L. R. 7 C. P. 163. 65. 
 
 (6) 1 Lutw. 1Z; h M. & G. 81. 
 
XLIII VICTORIA. 55 
 
 6 & 7 Vict. c. 18, by confining it strictly to the purpose 1879. 
 "of more clearly and accurately defining the same." Poeuett 
 Yet, if the appellant's construction be correct, that sub- lobd 
 section would be entirely inoperative, since there would 
 be no limit to the extent to which the qualification 
 might be changed by a declaration of misdescription. 
 
 R. H. Collins, in reply. Claims will n.ot, as has been 
 contended, be superseded by the adoption of the 
 appellant's argument. Declarations are for the benefit 
 of persons who are already on the list, although they or 
 their qualifications may, in some respect, be misdescribed 
 there. Claims, on the other hand, are mainly for those 
 who are not on the list at all, but who seek to establish 
 their right to be there. A qualification described as a 
 " shop " could not under the old law have been altered 
 into a "house." That is assumed throughout the 
 argument of Daniel v. Coulsting (a), and indeed the 
 argument in that case would have been wholly unnec- 
 cessary if the amendment could have been made as the 
 law then stood. But under the new law it is manifest 
 on reading Form M, that the Legislature must have 
 contemplated this class of amendment. The alteration 
 of " shop," "2, SUre Lane," into "house," " 24, Shire 
 Lane" affords so marked an indication of the intention 
 of the Legislature, that the Court will hardly be disposed 
 to adopt the respondent's argument that the powers of 
 amendment have in no respect been enlarged by the 
 recent legislation. 
 
 Cur. ad. vult. 
 
 Geove, J. now (6) said : This case was argued 
 
 (a) 1 Lutw. 230 ; S. C. 7 M, «fc (6) Dec. 6<A. 
 
 a. 122. 
 
56 MICHAELMAS SITTINGS. 
 
 1879. before iny brother Lindlei/ and myself, and the point 
 PoKKETT which was raised turned partly on a provision in section 
 
 LoED. 24 of 41 & 42 Vict. c. 26, which enables a person on 
 the list of borough voters to make a declaration in a 
 form given by the Act, and which declaration the 
 section requires the Revising Barrister to receive as 
 evidence of the facts declared to. The voter, in the 
 case before us, had been described in the list of voters as 
 qualified in respect of a house, 8, Birley Place, and in 
 the declaration the voter had declared that the correct 
 particulars respecting his qualification were " houses in 
 succession," " 8, Birley Place, and 9, Birley Place." 
 
 Now, supposing instead of this declaration under sec- 
 tion 24, evidence to the same effect had formerly been 
 tendered under the Registration Act, 1843, it would 
 have been inadmissible, and the Revising Barrister 
 would have been bound to expunge the name under sec- 
 tion 40, which provides " that whether any person shall 
 be objected to or not, no evidence shall be given of any 
 other qualification than that which is described in the 
 list of voters or claim, as the case may be ; nor shall the 
 Barrister be_ at liberty to change the description of the 
 qualification as it appears in the list, except for the 
 purpose of more clearly and accurately defining the 
 same." 
 
 The recent Act of 1878 (41 & 42 Vict. c. 26), after 
 several provisions, which, it was contended on behalf of 
 the appellant, have given the Revising Barrister larger 
 powers than those contained in section 40 of 6 & 7 Vict. 
 c. 18, enacts in sec. 28, sub-sec. 13, as follows: "except 
 as herein provided, and whether any person is objected 
 to or not, no evidence shall be given of any other quali- 
 fication than that which is described in the list or claim, 
 
X;,III VICTORIA. 57 
 
 as the case may be; nor shall the Revising Barrister be 1879. 
 at liberty to change the description of the qualification Poreett 
 as it appears in the list, except for the purpose of more Lokd. 
 clearly and accurately defining the same." That sub- 
 section, after the words " except as herein provided," is 
 alrnost word for word a repetition of what I have read 
 from section 40 of 6 & 7 Vict. c. 18. The preceding 
 sub-section (sub-section 12), enacts that where the 
 matter in relation to any alleged right to be on the list is 
 insufficient in law to constitute a qualification of the 
 nature or description stated or claimed, but sufficient in 
 law to constitute a qualification of some other nature or 
 description, the Revising Barrister may amend the list. 
 Where the qualification on the list does constitute a real 
 qualification, but by mistake is put down erroneously, 
 the qualification itself not being changed, the Revising 
 Barrister may insert the proper terms of the qualifica- 
 tion. But I do not see anything in that sub-section, or 
 in any previous sub-section of section 28, which prevents 
 the application of sub-section 13, where, as in the 
 present case, there is an obvious change of qualification, 
 and not a mere mistake in the terms of the qualification, 
 as would be the case if "warehouse" or "house" were 
 written down instead of something else that was perfectly 
 consistent with the qualification being the same. Here 
 there is an evident omission of a house, which is neces- 
 sary to make up the qualification. On the list it is " 8, 
 Birley Place" but in the notice, " 8 and 9, Birley 
 Place." That is a qualification of a different nature. 
 Instead of one house occupied for the qualifying period, 
 there are two houses in succession, each occupied for a 
 part of the period, the voter having apparently changed 
 his residence from 8 to 9, Birley Place, and occupied 
 
58 MICHAELMAS SITTINGS. 
 
 1879. the two houses successively. Bartlett v. Gibbs (a) is an 
 PoRRETT express authority that this could not have been made 
 Lord. the subject of an amendment under 6 & 7 Vict. c. 18, 
 s. 40. 
 
 The difficulty which I felt during the argument of the 
 case was caused by the specimen given in the schedule 
 of 41 & 42 Vid. c. 26, Form M, of a " Declaration 
 for correcting misdescription in list." The example 
 is there given of "shop" being entered in the list under 
 the heading " nature of qualification as described in the 
 list," and " house " being the " correct nature of quali- 
 fication." That, prima facie, undoubtedly looks like a 
 different qualification. It may be that the " shop " 
 and " house " in the example are supposed to be the 
 same place, and the house to have been incorrectly 
 described as a shop ; but when the name and situation 
 of the " shop " are described in the fourth column of the 
 list as " 2, Shire Lane," and the name and situation of 
 the house in the corrected entry, as " 24, Shire Lane," 
 it certainly does look very like a change of qualification. 
 The language of that form has raised a doubt in my 
 mind, which I cannot say is entirely removed. The 
 form may perhaps only be intended as an example of 
 the correction of an error in each column, but it cer- 
 tainly has the appearance of being inconsistent with 
 sub-section 13. There is, however, this distinction 
 between the present case and the example in the form, 
 that the example is consistent with there having been 
 no change in the supposed qualification, while in the 
 present case there clearly has been a change. 
 
 (a) 1 Lutw.n-, 5M. JiG. 81. 
 
XLIII -VICTORIA. 59 
 
 I am therefore of opinion that the Revising Barrister 1879. 
 was right, and that the appeal should be dismissed. Porbett 
 
 V. 
 
 Lord. 
 
 LiNDLEY, J. The cases of Bartlett v. Oihbs (a) and 
 Onions v. Bowdler (6), show that the claim in this case 
 could not have been amended before 1878, upon 
 evidence being given to the effect of the declaration 
 made in this case. The ratio decidendi in Bartlett v. 
 Gibbs (a), which most resembles this, was, that the 
 house mentioned in the claim did not give a qualifica- 
 tion, because it had not been occupied long enough, and 
 that the addition of another house was not a better 
 identification of the property referred to in the claim as 
 a qualification, but was the addition to that of something 
 else necessary to confer a qualification. This reasoning 
 appears to me to apply to the present case, and to dis- 
 tinguish it from those lite Bendle v. Watson (c), where 
 the number of the qualifying house was inserted or 
 corrected by the Revising Barrister. 
 
 Section 24 of the Act of 1878 (41 & 42 Vid. c. 26) 
 is, I think, a mere alteration in the mode of giving 
 evidence, and Form M in the schedule is only a form 
 in which declarations under that section are to be made. 
 Neither section 24 nor the Form M says what is to be 
 done by the Revising Barrister when the evidence is 
 given. To ascertain this we must look to section 28, 
 sub-sections 6 and 13, both of which, though slightly 
 different from 6 & 7 Vict. c. 18, s. 40, are framed on 
 the same principle. 
 
 (a) 1 Lutw. 73 ; S. a. & M. Je (fi) 1 Hopw. <fc Colt. 591 ; S. C. 
 
 G. 81. L.R.1 G. P. 163. . 
 
 (6) 2 Lutw. 59 ; & C. 5 C. B. 65. 
 
60 MICHAELMAS SITTINGS. 
 
 IS'^9- I am therefore of opinion that the Revising Barrister 
 
 PoBBETT was right, and that the appeal ought to be dismissed. 
 
 V. 
 LOBD. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Shaw <& Tremellen, 
 
 Agents for 
 Hall & Baldwin, Clitheroe. 
 
 For Respondent, Warriner, 
 Agent for 
 Nowell, Burnley. 
 
XLIII VICTORIA. 61 
 
 Spencer, Appellant; Harrison, Respondent. 
 
 ^T a Court held by one of the Barristers appointed to 1879. 
 revise the lists of voters for the North-East Division of ^^- ^g- 
 the county of Lancaster, Samuel Javnes Harrison duly 
 
 •' Where land 
 
 objected to the name of the appellant being retained on lias been 
 
 , . settled upon 
 
 the register of voters for the township of Brurcliffe- trust for sale, 
 with'Extwistle, in the said division, in respect of " share unsold"'""'* 
 of copyhold cottages." LSKbso- 
 
 The title deeds of the appellant were produced, apd p"*^fjj°^^'^^ 
 the following facts appeared: — ^^^^ ™ ^^^ 
 
 '■ '■ proceeds of 
 
 Lawrence Catlow Spencer duly made and executed *''®.^^^''''?,™ 
 
 ^ •' equity entitled 
 
 his last will and testament on the 8th of December, ^y implication 
 1865, whereby he bequeathed his personal estate and the rents and 
 gave and devised his real estates, whatsoever and where- fand until sale^ 
 soever, unto and to the use of his wife, Sarah Spencer, ert^ratinter- 
 and bis friends, Joseph Isherwood and Edward Garlich, ?^' V^ ^^^ '^'"1 
 their heirs, executors, &e., upon certain trusts set out in ffeM.neverthe- 
 
 less,that aper- 
 
 the words following, viz. : son so situated, 
 
 although actu- 
 tJpon trust that they, my said wife and the said Joseph Isherwood ally In receipt 
 
 and Edward Garlich, and the survivors and survivor of them, and the of his share of 
 heirs, executors, and administrators of such survivor, do and shall, as '"^ rents, had 
 soon as conveniently may be after my decease, absolutely sell and i i legal 
 dispose of the said hereditaments and premises, either entirely and all equitable in 
 together or in parcels, and either by public auction or private contract, the land as 
 
 would entitle 
 him to be re- 
 gistered as a county voter under 30 & 31 Vict. c. 102, s. 5, so long, at oM events, as 
 any person interested under the trust was under disability, so as to be incompetent to 
 elect to keep the land unconverted, since the trustees had in such a case a duty to sell, 
 and not merely the power. 
 
62 MICHAELMAS SITTINGS. 
 
 1879. for Buch price or prices as they,.&c., or the survivors or survivor, &c., 
 
 shall think reasonable, with power to buy in, &c., and resell, &c. ; and 
 
 Spencbb ^^ ^^^ gjjg^jj gjjijj^ possessed of and interested in the purchase-money 
 Harrison *° "'"^^ ^™"' ^"^ ^^•'^ "^ ^^l^^i *^ aforesaid, upon and for the trusts, 
 &c., hereinafter expressed, &c., that is to say, upon trust in the first 
 place to pay and discharge all my just debts, funeral and testamentary 
 expenses, and the costs and charges to be incurred in or about the sale 
 or sales, calling in, or conversion into money as aforesaid, or otherwise, 
 in or about the execution of the trusts aforesaid, or in relation thereto, 
 and do and shall lay out and invest the residue of the said money in 
 their, his, or her names or name, in any of the public stocks or funds 
 of Great Britain, or upon Government or real securities in England, 
 Sec, with power for the said trustees or trustee to vary the said stocks, 
 &c. ; and I declare that the said trustees or trustee shall pay the 
 interest, dividends, and annual proceeds of the said trust-moneys, &c., 
 unto or permit the same to be received by my said wife, Sarah Spencer, 
 during her life, or so long aa she shall continue my widow ; and from 
 and immediately after her decease or marriage, which shall first happen, 
 I direct that my said trustees or trustee shall stand possessed of the 
 said trust moneys, &c., upon trust for all and every my child or 
 children who shall be living at my decease or born in due time after- 
 wards, to be equally divided between them ; the share or shares of such 
 of them as shall be a son or sons to be vested and payable to him 
 or them on his or their attaining the age of twenty-one years, 
 and the share or shares of such of them as shall be a daughter or 
 daughters to be vested in her or them on her or their attaining the age 
 of twenty-one years or day or days of marriage, which shall first happen ; 
 and if there be but one such child who, being a son, shall attain the age of 
 twenty-one years, or being a daughter shall attain that age or marry, then 
 the whole to be in trust for such only child ; and I direct that my said 
 trustees or trustee do and shall lay out and invest the share or shares 
 of each of my said daughters or daughter in the purchase of stocks, &c., 
 of the like nature as are hereinbefore mentioned with regard to the 
 proceeds of my real and personal estate, and with the like powers of 
 varying such investments ; and do and shall during the life of each 
 such daughter pay the interest, &c., of her said share or of the stocks, 
 &c., in or upon which the same may be laid out or invested, to such 
 daughter, for her sole and separate use, independently and exclusively 
 of her husband for the time being (if any), and of his debts, control, 
 interference, and engagements, and so that her receipts alone shall be 
 discharges for the same, and that she shall not have the power to 
 deprive herself of the benefit thereof by sale, mortgage, charge, or 
 otherwise in the way of anticipation ; and from and after the death 
 of each such daughter do and shall stand possessed of the share herein- 
 before given to her of the said trust moneys, and the interest a,nd 
 annual produce thereof, in trust for all and every or such one or more 
 of the children of such daughter, with such provisions for their respective 
 maintenance and education or advancement, and, if more than one, in 
 
XLIII VICTORIA. 
 
 63 
 
 such parts, shares, and proportions, and upon such conditions and with 1879. 
 
 such restrictions as such daughter, whether covert or sole, shall by her 
 
 last will and testament in writing, or any codicil or codicils thereto, or 
 
 any writing or writings in the nature of or purporting to be a will or Hakeison. 
 
 codicil, at any time or times direct or appoint ; and in default o£ such 
 
 appointment, and so tar as the same, if incomplete, shall not extend, in 
 
 trust for all and every the children or child of each such daughter as 
 
 shall be living at her decease, who, being a son or sons, shall attain the 
 
 age of twenty-one years, or, being a daughter or daughters, shall attain 
 
 that age or marry, in equal shares ; and if there shall be but one such 
 
 child, the whole to be in trust for such one child. 
 
 The cottages in respect of a share in which the 
 appellant claimed to vote are copyhold of inheritance of 
 the Manor 'of Ightenhill, and are situate at Haggate, in 
 the said township of Briercliffe-with-Extwistle, and are 
 part of the real estates devised by the will of the said 
 L. C. Spencer. 
 
 The testator died on the 1st of May, 1872, leaving 
 three sons, the appellant and two brothers, and one 
 daughter, him surviving. 
 
 Sarah Spencer, the wife of the testator, and one 
 of the trustees and executors named in his will, 
 predeceased the testator, having died on the 4th of 
 December, 1869. 
 
 J. Isherwood and E. Oarlicic, the surviving trustees and 
 executors of the said will, duly proved the will in the 
 district registry of Lancaster, attached to Her Majesty's 
 Court of Probate, on the 17th of July, 1872 ; and the said 
 J. Isherwood and K Garlick were on the 8th of December, 
 1873, duly admitted to the said copyhold cottages at 
 Haggate, according to the custom of the said Manor, of 
 Ightenhill, as surviving trustees under the will of the 
 testator, and they are now customary tenants of the said 
 cottages upon the trusts and for the purposes of the 
 said will. 
 
64 MICHAELMAS SITTINGS. 
 
 1879. The testator's daughter, in the year 1866, intermarried 
 
 Spencer with, and is now the wife of, John Edward Garside, 
 Hakkison. s-^d has issue, who are infants. 
 
 All the children of the testator are of full age ; and in 
 accordance with a verbal arrangement amongst them- 
 selves (in which the said John Edward Garside 
 concuried), had agreed to keep unconverted the said 
 copyhold cottages at Haggate ; and the rents thereof were 
 received by the said J. Isherwood and E. Garlick, as such 
 surviving trustees of the said will, and divided amongst 
 the testator's children. 
 
 The rents arising from the copyhold cottages amount 
 to . £50 per year, or thereabouts, and the appellant's 
 share of such rent exceeded £10 a year, and was suffix 
 cient, in point of value or amount, to confer the 
 franchise. 
 
 It was contended on the part of the objector, that 
 inasmuch as Sarah Emma Garside, one of the parties 
 beneficially entitled to a share of the income for life 
 from the moneys to arise from the sale and conversion 
 of the testator's real estate, under the will of the 
 said testator, was a married woman and had issue, who 
 were infants, no election could be made to take the 
 said cottages in their actual state, and so determine and 
 extinguish the converting trust, and also that the said 
 surviving trustees were no parties to the said verbal 
 arrangment, and that the appellant was not entitled to 
 have his name inserted on the said list of voters in 
 respect of the said qualification. 
 
 It was argued on the part of the appellant that, inas- 
 much as the share of the said Sarah Emma Garside 
 was settled under the said will to her separate use for 
 life, independent of her husband, she was as much 
 
XLIII VICTORIA. 63 
 
 capable of making an election, although she had infant 1879. 
 children interested in the trust fund, as if she had been Spenoee 
 a feme sole, and that, accordingly, no deed was necessary haemson. 
 to ratify such election. 
 
 It was further contended, on the same behalf, that 
 even when real property left by will is directed to be 
 sold and converted into money, the franchise would 
 attach in favour of the person or persons for the time 
 being entitled to and receiving the rents or income 
 thereof, such rents or income being of sufficient annual 
 value, until the moment of such conversion actually 
 taking place, in the same manner as it is contended 
 that partners in a trading concern are entitled thereto 
 in respect of partnership property, which, though in its 
 nature real, is in equity, or by terms of the partnership 
 deed, considered as personalty. 
 
 The Kevising Barrister concurred in the view held bj 
 the objector, and expunged the name of the appellant 
 from the said list. 
 
 The same point of law was raised in the cases of two 
 other persons, whose names were also expunged, and the 
 facts and circumstances being similar, the appeals were 
 consolidated. 
 
 If the Court should be of opinion that the -decision 
 was wrong, the register was to be amended by restoring 
 the names pf the appellant and the two other persons. 
 
 R, H. Collins, for the appellant. The appellant has 
 a sufficient equitable interest in copyhold land to entitle 
 him to the franchise under 30 & 31 Vict. e. 102, s. 5. 
 It is true that the land is devised to trustees upon trust 
 for sale ; but, until a sale takes place, the land remains 
 land, and the equity doctrine of conversion does not, it 
 
66 MICHAELMAS SITTINGS. 
 
 1879 is submitted, affect the case. In Baoiier v. Brovm (a), 
 Spenoek where (the case being one of partnership) it was sought 
 Hakb'ison. *° ^PPly the doctrines of a Court of Equity as to con- 
 version, so as to deprive the partners of the franchise, 
 Tindal, C.J., said: "Notwithstanding this acknow- 
 ledged doctrine of the Court of Equity, no one can deny 
 that the land still remains land, and nothing else; and 
 there is no authority or decision that, for the collateral 
 purpose of giving a vote, which has no bearing upon or 
 reference whatever to the objects of the partnership, the 
 right of the cestui que trust should not remain just as 
 it would have been without the declaration of trust." 
 It is true that, in the case of Myers v. Perigal (6) 
 (which, after being sent by Lord Truro to the Court of 
 Common Pleas for their opinion, was ultimately, on the 
 certificate of their opinion being obtained, decided by 
 Lord St. Leonards), Lord St. Leonards, while deciding 
 the case in accordance with the opinion expressed in 
 the certificate, with which he concurred, intimated that 
 the conclusion arrived at appeared to him in conflict 
 with Baxter v. Brown (a), unless Baxter v. Brown (a) 
 could be distinguished as a decision depending upon 
 principles which related solely to the franchise. But in 
 Bennett v. Blain (c) these cases came under the con- 
 sideration of the Court of Common Pleas upon a question 
 relating to the franchise ; and that Court did not adopt 
 the distinction thus suggested by Lord St. Leonards, but 
 recognized and adopted the case of Myers v. Perigal (b) 
 as a binding authority on the question of the fran- 
 
 (a) 1 M.& G. 198; S. C nom. 434. 
 
 Baxter v. Nevman, 1 Lutw. 287. (c) Hopw. Jb Ph. Zf> ■ S C 
 
 (b) 2 De Oex, M 'N. tfc O. 599, 15 0. B. N. S. 618 
 622; -S. C. 22 L. J. Cham. 431, 
 
XLITI VICTORIA. 67 
 
 chise. In doing so, however, the Court distinguished 1879. 
 
 Baxter v. Broivn (a) as the case of an ordinary partner- Spenoeb 
 
 ship ; and Erie, C.J., said (b) : " That was simply an hakeison. 
 
 ordinary partnership, only the partners were somewhat 
 
 more numerous than is usually the case. But there 
 
 was nothing whatever to distinguish it in principle from 
 
 an ordinary trading partnership." On the other hand, 
 
 in Bennett v. Blain (c), which was the case of the 
 
 Manchester Corn Exchange, the principle of the decision, 
 
 as stated by Williams, J., was, that the shareholders in 
 
 a company of that description have no direct interest in, 
 
 or right to, any specific portion of the property of the 
 
 company, but only a right to a share of the profits. 
 
 Here the proposition which applies is the converse ; viz., 
 
 that the appellant is entitled to a share of the rents, and 
 
 that, being so entitled, he has a direct interest in the 
 
 land. That the appellant has such an interest in the 
 
 rents is shown by the cases cited in the notes to White 
 
 and Tudor's Leading Cases in Equity, oth ed., vol. i., 
 
 p. 925 {Fletcher v. Ashburner), where it is said: "Until 
 
 conversion actually takes place, the person, to whom 
 
 the interest of the proceeds of the estate directed to be 
 
 sold is given, will he entitled, in lieu thereof, to the 
 
 rents of the estate." And for that proposition are cited 
 
 Casamajor v. Strode (d) and Miller v. Miller (e). And 
 
 Franks v. Bollans (/) shows such interest in the rents 
 
 to be an interest in land. For in Franks v. Bollans, 
 
 the attempt having been made by a married woman to 
 
 transfer an interest similar to that under discussion by 
 
 [a) 7 M. & 0. 198 ; 5. C. nom. 0. B. N. S. 518. 
 Baxter v. Newman, 1 Lutw. 287. (d) 19 Ves. 390, m. 
 
 (6) 33 L. J. C. P. 67. («) L. R. 13 Ei. 263. 
 
 (c) Hopw. <t- Ph. 35 ; S. C. 15 (/) L. R. 3 Oh. 717. 
 
 P 2 
 
68 MICHAELMAS SITTINGS. 
 
 1879. deed, the deed was held inoperative, because it had not 
 Spencer been acknowledged under the Act for the Abolition of 
 Haewson. Fiiies and Eecoveries (3 & 4 Will. 4, c. 74). That the 
 interest of the appellant, ii prima facie freehold, is not 
 cut down by the power of the trustees to sell, when the 
 sale is to be exercised, as here, for the appellant's 
 benefit, is shown by the case of Ashworth v. Hopper (a). ' 
 
 [LiNDLEY, J. In Ashworth v. Hopper (a), subject to 
 the power of sale, each beneficiary took an interest in 
 fee. But here how do you show that the interest is 
 freehold?] 
 
 The interest in the land until sale is, it is submitted, 
 the same in character as the interest in the proceeds 
 after sale. An estate of uncertain duration which may 
 last for life is ordinarily freehold. (See per Maule, J., 
 in Beeson v. Burton) (6). Here, if a sale takes place, 
 the appellant has an absolute beneficial interest in the 
 proceeds, and there is nothing to warrant the view that 
 the power, or even the duty, to sell can cut down the 
 freehold, iiprimd facie it exists. 
 
 No one appeared for the respondent. 
 
 Cur. ad. vult. 
 The judgment of the Court (c) was now {d) delivered by 
 
 LiNDLEY, J. The question we have to determine is, 
 whether the appellant, Spencer, has, under the above 
 will, and parol agreement postponing the sale of the 
 devised copyholds, any such interest in them as entitles 
 
 (a) 2 Hopw. & Colt. 283 ; S. C. Q. B. 659. 
 L. R 1 G. P. D. 178. • (c) Lindley and Lmei, JJ. 
 
 (6) 2 Lv.tw. 231, 232; S. G. 12 (d) Dec. 19. 
 
XLIII VICTORIA. 69 
 
 him to a vote for the county of Lancaster. The Re- 1879. 
 vising Barrister has decided this question in the negative, Spenceh 
 and we have to determine whether his decision is hakmson. 
 correct. 
 
 The appellant clearly had no legal estate, and his 
 right to vote depends entirely on his equitable estate, 
 if any, in the copyhold lands devised for sale. 
 
 Before the Reform Act (2 Will. 4, c. 45, s. 19), 
 copyhold lands conferred no qualification; and before 
 7 & 8 Will. 3, c. 25, s. 7, equitable interests conferred 
 none. At the present time the right of a person to vote 
 in respect of an equitable interest in copyholds depends 
 on 30 & 31 Vict. c. 102, s. 5, which is as follows :— 
 " Everyman shall in and after the year 1868 be entitled 
 to be registered as a voter, and, when registered, to vote 
 for a member or members to serve in Parliament for a 
 county, who is qualified as follows, that is to say: 1. Is 
 of full age, and not subject to any legal incapacity, and 
 is seised at law or in equity of any lands or tenements 
 of freehold, copyhold, or any other tenure whatever, for 
 his own life, or for the life of another, or for any lives 
 whatsoever, or for any larger estate, of the clear yearly 
 value of not less than £5, over and above all rents and 
 charges payable out of or in respect of the same, or who 
 is entitled, either as lessee or assignee, to any lands or 
 tenements of freehold or of any other tenure whatever, 
 for the unexpired residue, whatever it may be, of any 
 term originally created for a period of not less than 
 sixty years (whether determinable on a life or lives or 
 not), of the clear yearly value of not less than £5, over 
 and above all rents and charges payable out of or in 
 respect of the same ; provided that no person shall be 
 registered as a voter under this section unless he has 
 
Spbncee 
 
 V. 
 
 Hakeison. 
 
 70 MICHAELMAS SITTINGS. 
 
 1879. complied with the provisions of" section 26 of 2 Will. 4, 
 c. 45. 
 
 The 26th section of 2 Will. 4, c. 45, here refen-ed to, 
 enacts as follows : — " Notwithstanding anything herein- 
 before contained, no person'shall he entitled to vote in 
 the election of a knight or knights of the shire to serve 
 in any future Parliament, unless he shall have been duly 
 registered according to the provisions hereinafter con- 
 tained; and no person shall be so registered in any 
 year in respect of his estate or interest in any lands or 
 tenements as a freeholder, copyholder, customary tenant, 
 or tenant in ancient demesne, unless he shall have been 
 in the actual possession thereof, or in the receipt of the 
 rents and profits thereof for his own use for six calendar 
 months at least next previous to the last" day of July 
 in such year, which said period of six calendar months 
 shall be sufficient, any statute to the contrary notwith- 
 standing, &c." 
 
 These enactments show that, to entitle the appellant 
 to vote in this case, he must establish — 1. That he is 
 seised in equity of the copyholds in question for his own 
 life or the life of another, or for some lives, or for some 
 longer estate. 2. That he shall have been in the actual 
 possession of the lands, or in the receipt of the rents and 
 profits thereof for his own use, for six calendar months 
 at least next before the last day of July previous to his 
 entry on the register. 
 
 We are of opinion that the second of these requisites 
 is established; for it is stated that the trustees received 
 the rents, and divided them amongst the cestuis que 
 trustent. The appellant, therefore, was in the receipt of 
 his share of the rents. 
 
 We proceed to consider whether he was seised in 
 
XLIII VICTORIA. 71 
 
 equity of the copyholds for such an estate as the statute 1879. 
 
 requires. This inquii-y involves two others, viz.: 1. Has Spbncek 
 
 the appellant any beneficial interest in the lands ? 2. If Harwson. 
 
 he has, what is the nature of such interest ? The will 
 
 does not contain any express trust of the lands or rents 
 
 until sale ; but there is an implied trust of them for the 
 
 appellant and other persons entitled to the proceeds of 
 
 sale. By virtue of this implied trust, the appellant 
 
 is entitled in equity to a share (one fourth) of the rents 
 
 and profits of the land until sale {Gasamajor v. Strode) (a). 
 
 But an interest in the rents and profits of land is an 
 
 interest in the land itself ( Co. Litt. 4 b). Consequently 
 
 the appellant has an equitable interest in the land until 
 
 sale. He is not in the position of a person who has 
 
 only an interest in so much money charged on land. This 
 
 is shown by Franks v. Bollans (b), where it was held, 
 
 that a married woman, who had a similar interest to 
 
 that of the appellant, could not transfer that interest 
 
 without an acknowledged deed. The equitable interest 
 
 of the appellant in the lands amounts therefore to this : 
 
 First, he has a right to have them sold. Secondly, he 
 
 has a right to his share of the rents until they are sold. 
 
 But this is all ; and we are of opinion that this is not a 
 
 seisin in equity of the copyholds for such an estate as 
 
 the statute requires. If the appellant can be correctly 
 
 said to be seised in equity of any estate in the copyholds 
 
 (which we do not think he can), we are of opinion that 
 
 his estate is not an estate for life or any larger estate. 
 
 The period of sale, or, in other words, the determina- 
 tion of the appellant's interest, is wholly uncertain. It 
 depends on the trustees and the cestuis que trustent. It 
 
 (a) 19 Ve>. 390, n. (b) L. R. 3 Oh. m. 
 
V. 
 
 Hakeison. 
 
 ^2 MICHAELMAS SITTINGS. 
 
 1879. is even possible that no sale may ever be made under 
 Spencer the trusts of the will; for the land may remain unsold 
 until all the cestuis que trustent are of age and capable 
 of electing to keep the land unsold. Is such an un- 
 certain interest as this a freehold internst determinable 
 upon a contingency, or is it an interest at will? If 
 the appellant is seised of an equitable estate of freehold 
 determinable, he is entitled to be on the register 
 {Ashworth v. Hopper) (a) ; if not, he is not. 
 
 An uncertain interest in land, i.e., an interest deter- 
 minable on a contingency which may or may not happen, 
 is in almost all cases a freehold interest, unless the 
 contingency depends on the will of- the person creating 
 the estate or his successors in title. (See Serjeant Man- 
 ning's notes m2 M. & G. 19, and 7 M. & G. 45, and 
 the authorities there cited.) Speaking generally, we agree 
 with Serjeant Manning in thinking that every interest 
 in land of uncertain duration (though not expressed to 
 be for life), determinable by matter subsequent which is 
 the subject of human agency — as, where it is determin- 
 able at the will of a stranger— constitutes a freehold 
 for life. We say speaking generally, because there are 
 exceptions to the rule thus stated; for example, estates 
 created by will for the payment of debts, and determin- 
 able when they are paid, are regarded as chattel and not 
 freehold interests {Co. Litt. 42 a). Further, a tenant by 
 elegit has only a chattel interest determinable when his 
 judgment is satisfied (Co. Litt. 42 a), and not a freehold 
 interest, although there is some uncertainty as to the 
 duration of his estate. 
 
 On the other hand, an estate of uncertain duration, 
 determinable on the will of the grantor or lessor, or 
 
 (o) 2 Hopio. & Colt. 283 ; S. 0. L. R. 1 C. P. D. 178. 
 
XLIII VICTORIA. 73 
 
 of their successors in title, is, generally speaking, an 1879. 
 estate at will, and not a freehold. (See Litt. 68, and Co. spenceb 
 Litt. 55 a; Com. Dig. Estate hy grant (H. 1); Fernie habkison. 
 V. Scott) (a). It is true that Brudnell, C.J., speaking 
 in the early part of the reign of Hen, 8, is reported to 
 have said, "A lease at will must be at the will of both 
 parties ; for if it be at the will of the lessor only, it is 
 a lease for life." (See 7 M.& G. 46, n.) But we can find 
 no instance of a lease at the will of the lessor, which is 
 not also a lease at the will of the lessee, and therefore a 
 lease at will. And Lord Coke, in Co. Litt. 55 a, says, 
 that a lease cannot be at the will of the lessor only. 
 So a lease "at the will of the lessee" is "also at the will 
 of the lessor" (ib.). But here again some qualification is 
 necessary; for it is laid down (h) that, "If I make a lease 
 to another till I go to Westminster, the lessee has an 
 estate for life; so, if A. lease to B. till A. makes J. S. 
 bailiff of his manor, B. has the freehold in him; for, 
 since there is no particular time specified, but it is left 
 indefinitely when I shall go to Westminster, or J. S. be 
 made bailiflf of the manor, and these contingencies may 
 or may not happen during the life of the lessee, and the 
 livery transfers the freehold to him, so he must, conse- 
 quently, by the words of the gift, enjoy it during his life, 
 if none of these contingencies happen in that time upon 
 which the estate is to determine." In such a case as 
 this the granting of livery of seisin, or the omission to 
 grant livery, would show at once what was the estate of 
 the grantee. If livery was granted, an estate for life 
 would be created; otherwise, not. 
 
 Excluding such cases as these, and excluding cases 
 
 (a) 1 ffopw. <£• Colt. 718 ; S. C.L. (b) See 1 M. dc Q. i6, n. 
 11.7 0. P. 209. 
 
74 MICHAELMAS SITTINGS. 
 
 1879. where the intention of the parties can be ascertained, 
 Spencer the distinction between a freehold estate determinable 
 Habwson. **' ^^^•'' ^^^ ^^ estate at will, appears to turn upon the 
 person at whose will the estate is held. If that person 
 is the grantor, his heirs or assigns, the estate is an estate 
 at will ; whilst, if that person is a stranger, the estate is 
 a freehold determinable. 
 
 In the present case, the equitable interest of the 
 appellant in the land, as distinguished from the money 
 arising from its sale, is determinable at the will of the 
 trustees, who are the devisees of the testator. They 
 have the legal estate, and are not strangers in the sense 
 we understand that word to be used in the above extract 
 from Serjeant Manning's note ; moreover, it is their 
 duty to sell, and so determine the appellant's interest in 
 the land. These circumstances render the appellant's 
 equitable interest in the land much more like an equit- 
 able estate at will than an equitable estate for life or 
 lives or other larger interest, as required by the statute 
 in order to entitle him to be registered as a voter for th« 
 county. 
 
 The same conclusion may be arrived at by another 
 mode of reasoning. It is plain that the appellant has no 
 equitable estate or interest of inheritance in the land. 
 In the event of his death such interest as he has devolves 
 as personal estate upon his executors or administrators : 
 nothing descends to his heir. If the appellant has any 
 freehold interest in the land, it must therefore be some- 
 thing less than an estate of inheritance ; it must be an 
 estate for some life or lives. No such estate is expressly 
 given him by the testator, nor was any such estate 
 ever contemplated by him: quite the contrary. He 
 intended the sale to be immediate, and we do not see 
 
XLIII VICTORIA. 75 
 
 upon what principle an estate for life or lives can be im- 1879. 
 plied, when it is not necessary to give effect to the will, Spencer 
 
 V. 
 
 under which alone the appellant derives his title. Haerisow. 
 
 It is curious that the precise point now before us is 
 not apparently covered by any reported decision. But 
 Melting v. Leak (a) goes far, to show that the appellant 
 is not even tenant at will to the trustees, and that the 
 appellant has no estate in the land in the proper sense 
 of the expression. Moreover, the cases of Bennett v. 
 Blain (b) and Freeman v. Gainsford (c), in which 
 Baxter v. Brown (d), and the bearing of the equitable 
 doctrines of conversion on rights of voting were fully 
 discussed, appear to us to be rather in favour of the 
 conclusion we have arrived at than opposed to it. 
 Baxter v. Brown (d) is open to the observation that it 
 depended on the will of the cestwis que trustent whether 
 there should be a sale or not. In the present case the 
 settlement of the daughter's share precludes the appel- 
 lants from keeping the land as land, even if they wished 
 to do so. For the reasons we have given, we are of 
 opinion that the decision of the Revising Barrister 
 should be aflSrmed, and that the appeal be dismissed, 
 with costs. 
 
 Decision affirmed. 
 
 Solicitors — For appellant, Ridsdale, Craddock & 
 
 Ridsdale. 
 
 (a) 16 C. B. 652. 18 C. B. N. S. 1?5. 
 
 (6) Hopw. & Ph. 35 ; S. C. 15 (d) 1 M. & G. l^i ; S. C. nam. 
 
 O. B. N. S. 518. Baocter v. Nevmum, 1 Lutw. 287. 
 
 (c) J3bpw. <fc Ph. 255; S. C. 
 
76 MICHAELMAS SITTINGS. 
 
 Hayward, Appellant ; Scott, Eespondent. 
 
 1879. AT a Court held before the Eevising Barrister ap- 
 ^°'"' ^^' pointed to revise the list of voters for the city and 
 
 The incapacity jjorough of Bath, an application was made to expunge 
 41 & 42 ViM. from the list of voters for the parish of ZyncoTribe and 
 
 c. 26, s. 28, _ _ -^ ^ 
 
 sub-section 7, Widcomhe-Listone (Division 1), in exercise of the 
 
 is a general 
 
 incapacity, powers conferred by sub-sections 7 and 8 of section 28 of 
 status as an 41 & 42 Vict. c. 26, the names of George Baker and 
 not" aTin" eight other persons in Schedule 1 (annexed to. the case), 
 SylS oil the ground that the said George Balcer and the said 
 the right of eight other persons had received parochial relief during 
 
 voting in a ° '^ '^ " 
 
 particular ^}^q qualifying period. 
 
 Neither the An application v?as also made by the appellant to 
 receipt of 
 parochial expunge Under the same powers the names of William, 
 
 insufficient Clarke and fifty other persons in Schedule 2 (also 
 
 the"qu£^ing annexed to the case), on the ground that the said 
 
 fnoJoTtier l^*^^*am Clarke and fifty other persons had not 
 
 within this occupied the qualifying premises as owners or tenants, 
 
 EeU, there- as required by statute, during the qualifying year. In 
 
 Bevising neither of the said cases had notice of objection been 
 
 no power to given as required by 6 & 7 Vict. c. 18, s. 17, as amended 
 
 :H?:^';ftheseby41&42Fic«.c.26. 
 
 which wT'' 'The facts of receipt of parochial relief by persons 
 
 unobjected to. named in Schedule 1, and non-occupation of qualifying 
 
 premises by persons named in Schedule 2, were admitted. 
 
 The Revising Barrister was of opinion that the words 
 
XLIII VICTORIA. 77 
 
 of the sub-sections 7 and 8 of section 28 of 41 & 42 Vict. 1879. 
 
 c. 26, did not apply to either of the said cases, and hayward 
 retained the names of all the said persons in Schedules soott. 
 1 and 2 on the list of voters. 
 
 If the Court were of opinion that the Revising 
 Barrister's decision was wrong as to the names in 
 Schedule 1, the register was to be amended by expung- 
 ing the names therein. 
 
 If the Court were of opinion that the Revising 
 Barrister's decision was wyong as to the names in 
 Schedule 2, the register was to be amended by expung- 
 ing the names in that schedule. 
 
 Ridley, for the appellant. The decision of the 
 Revising Barrister was wrong. It cannot indeed be 
 contended that a voter is " incapacitated by statute from 
 voting " within the fair meaning of 41 & 42 Vict. c. 26, 
 s. 28, sub-s. 7, by the fact of insufficient occupation, 
 but it is submitted that he is so by the receipt of 
 parochial relief. Section 36 of 2 Will. 4, c. 45, enacts 
 "that no person shall be entitled to be registered in 
 any year " as a borough voter, who within twelve calendar 
 months next previous to the last day of July in such 
 year has received parochial relief And section 40 of 
 30 & 31 Vict. c. 102, enacts that the overseers shall 
 omit from their lists all persons who within such period 
 have received parochial relief It must be admitted that 
 the judgment in Stowe v. Joliffe (a), though a decision 
 on section 7 of the Ballot Act (35 & 36 Vict c. 33), and 
 therefore not directly in point, contains expressions 
 which are adverse to the appellant's contention. Lord 
 Coleridge, C.J., there said : " The receipt of alms — 
 
 (a) L. R. 9 C. P. 734. 
 
78 MICHAELMAS SITTINGS. 
 
 1879. supposing the alms in this case to be such as to dis- 
 Haywakd qualify — the receipt of parochial relief; non-residence 
 
 Scott. within the proper distance of the borough; non-occu- 
 pation; insufficient qualification; none of these things 
 appear to satisfy the words of the proviso. It does not 
 mean persons who from failure in the incidents or 
 elements of the franchise, could be successfully objected 
 to on the revision of the register : it means persons who, 
 from some inherent, or for the time irremovable, quality 
 in themselves have not, either by prohibition of statutes 
 or at common law, the status of parliamentary electors. 
 Such, for example, are peers, whether of the United 
 Kingdom, or of Scotland, or of Ireland, women, persons 
 holding certain offices or employments the subjects of 
 statutory prohibitions, and persons convicted of crimes 
 which disqualify them from voting." The principle of 
 that decision is not impugned, but it is submitted that 
 the receipt of alms and parochial relief are placed by 
 Lord Coleridge in the wrong category. That category 
 rightly comprises non-occupation, non-residence, and 
 insufficient qualification, which are all cases in which it 
 may with accuracy be said that there has been a failure 
 in the incidents or elements of the franchise. But the 
 same remark does not apply to the receipt of alms or 
 parochial relief Such receipt does not constitute any 
 failure in the affirmative elements of qualification, but 
 forms a statutory gi-ound for the disqualification of the 
 voter. Not only are the overseers expressly directed, as 
 has been already pointed out, to omit persons so dis- 
 qualified from their lists ; but under 41 & 42 Vict. c. 26, 
 s. 12, they are imperatively required to ascertain the 
 names of all such persons from the relieving officer. 
 The Legislature has evidently done everything in its 
 
XLIII VICTORIA. 79 
 
 power to prevent persons so situated from being inserted 1879. 
 in the lists, and if in defiance of these provisions, the Hayward 
 
 V. 
 
 overseers continue to insert them, there seem strong Soott. 
 reasons why the Revising Barrister should intervene so 
 as to prevent the intention of the Legislature from being 
 frustrated through the action of the overseers, whether 
 negligent or intentional. Wilson v. The Town Clerk of 
 Salford (a) favours the view that even under the old 
 law it was competent to strike off women, although they 
 were unobjected to, and peers would stand upon the 
 same footing. If, indeed, the present enactment does 
 not apply to the case of the receipt of parochial relief, it 
 is difficult to see what case it was intended to meet, 
 which was not met by the earlier enactment. 
 
 [Lopes, J. Was it not a very doubtful question under 
 the earlier enactment whether any person could be struck 
 o£f who was not objected to ?] 
 
 Women and peers, it is submitted, could at all events 
 be struck off, and it is difficult to see why persons in 
 receipt of parochial relief should be more favourably 
 dealt with. Hardship to the voter need not be appre^- 
 hended, since, under the 8th sub-section of 41 & 42 Vict. 
 c. 26, s. 28, the-Eevising Barrister is directed to cause 
 notice to be given before expunging the name of a person 
 not objected to. 
 
 Odgers, for the respondent, was not called upon (b). 
 
 {a) 1 Ropw. <0 Colt. 44 ; S. 0. in favour of the view the Court 
 
 L. R. i C. P. 318. adopted, thatihe receipt of paro- 
 
 (5) In consequence of the re- chial relief does not constitute an 
 spondent's counsel not being called incapacity within section 28, sub- 
 upon to argue, the attention of the section 7. The duty of the Re- 
 Court was not directed to section vising Barrister to expunge under 
 7 of 41 & 42 Vict. c. 26, which sub-section 7 depends on the ex- 
 furnishes an additional argument istenoe of the incapacity on the 
 
80 MICHAELMAS SITTINGS. 
 
 1879. LiNDLEY, J. I am of opinion that the decision of 
 
 Hatwabd the Revising Barrister was correct. The question is 
 Scott. whether, under 41 & 42 Vict. c. 26, s. 28, sub-s. 7, the 
 Revising Barrister vfas bound to expunge the names of 
 certain persons to whom no notice of objection had been 
 given, upon the ground, as to some, that during the 
 qualifying period they had received parochial relief, and, 
 as to others, that there had been no sufficient occupation 
 of the qualifying premises. 
 
 Putting aside for the moment the question of in- 
 sufficient occupation, what we have to decide is, whether 
 a person, who within the qualifying period has received 
 parochial relief, is thereby " incapacitated " within the 
 meaning of 41 & 42 Vict. c. 26, s. 28, sub-s. 7. It 
 is argued that, inasmuch as by section 40 of the Repre- 
 sentation of the People Act, 1867, the overseers are 
 directed to omit from their lists the names of those who 
 during the qualifying period have received parochial 
 relief, such persons are " incapacitated " within the 
 meaning of the said sub-section. The word "incapacity" 
 may possibly create some little difficulty, because in one 
 sense it may be said that such persons are incapacitated ; 
 but the question is, whether they are incapacitated in 
 the sense in which the word was here intended to be 
 used, and to my mind they are not. The statute does 
 not say that the Revising Barrister is to " expunge the 
 name of every person, whether objected to or not," who 
 is not qualified, but " of every person, whether objected 
 to or not," who is '* incapacitated by any law or statute 
 
 31st of July. But by section 7 "period of qualification" is "to 
 
 the period of qualification in include any period of occupation, 
 
 boroughs is now computed by residence, possession, receipt of 
 
 reference to the 15th, and not to rents and profits, and non-receipt 
 
 the 31st of July, and the term of parochial relief or other alms." 
 
XLIII VICTOKIA. 81 
 
 from voting af an election." The words must, in my 1879. 
 opinion, have reference to a case of general incapacity to Haywabd 
 vote at any election, and not to a disqualification like Scott. 
 this, arising from the receipt of parochial relief, which 
 can only affect the right of voting in a particular year. 
 But whatever difficulty might exist in construing these 
 words, if there were no authority on the subject, is 
 removed by the case of Stowe v. Joliffe (a). For, 
 although in that case the decision was upon the language 
 of another statute, the ratio decidendi indicates what 
 kind of incapacity was intended by the statute now under 
 discussion. Having regard to that decision, I am clearly 
 of opinion that in this case there was no such incapacity. 
 And as regards the cases which depend on insufficient 
 occupation, I need only add that they present an d 
 fortiori case. I am, therefore, of opinion that the 
 decision of the Revising Barrister should be affirmed. 
 
 Lopes, J. I am of the same opinion. The case ap- 
 pears to me to be governed hj that oi Stowe -v. Joliffe (a); 
 but apart from that authority I am clearly of opinion 
 that the Revising Barrister was right. The "incapacity" 
 referred to in the statute is, in my opinion, a general 
 incapacity of such a description as would prevent a 
 person from voting at any election, and not a merely 
 transitory incapacity such as this, which affects the right 
 of voting in a particular year only. Those who are 
 engaged in the practical working of this Act will, I feel 
 confident, be of opinion that this is a salutary, as well 
 
 as a right, conclusion. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Ellis, Munday d Go. 
 
 For Respondent, Rogerson & Ford, 
 
 Agents for Ricketts, Bath. 
 
 (a) L. R. 9 C. p. 734. 
 
82 MICHAELMAS SITTINGS. 
 
 FowLE, Appellant ; Trevor, Respondent. 
 
 1879. A T a Court for revising the parliamentary lists of voters 
 
 Nov 19. 
 
 ' for the borough of Northallerfon, objection was duly 
 
 occupation of ^ made to a voter whose name stood on the list for the 
 a voter an g^^j^ borough as foUows :— 
 
 occupation as " 
 
 tenant within Booth, John I Killerly Hall, I Buildings and land I Brompton 
 
 2 Wm. 4, 0. Bainbridge. \ Oatterick. | (joint). | Eoad. 
 
 45, s. 27 (so as 
 
 to qualify him The only question argued before the Revising Ban-ister 
 
 for the borough ■, ■, ■ ■ ^ 
 
 franchise), it was whether the voter had any interest whatever m the 
 that thevoter's qualifying premises. The Revising Barrister thought 
 '^vear^id ^^ ^^^ none, and expunged his name from the list, 
 legal title to ^-^^ following state of facts :— 
 
 demise. ^ ° 
 
 Therefore, jjj support of the vote a memorandum of agreement, 
 
 where pre- '^^ '^ 
 
 miaes com- dated the 2nd of July, 1 878, was put in evidence, 
 
 prised in a set- 
 tlement deed whereby William Fowle, "thereinafter called the land- 
 were demised , _ ,, -i . ^ 
 to the voter lord, agreed to let, and the voter, with two others, 
 
 tTOstees° who, agreed to take, the qualifying premises for one year, and 
 demiseThad ^° ""^ iiora year to year so long as the said parties 
 '^"d th m™' ^^°'i'^ agree, paying rent for the same as therein pro- 
 paying rent to yided. No question was raised as to the due execution 
 
 the cestm que 
 
 trust, without of this agreement by all the parties, and the Revising 
 
 the interfer- 
 ence of his Barrister was satisfied upon evidence that possession 
 cotrustee; t ii i i n i 
 
 held that, under the agreement had been given to the voter and 
 
 r^iTobfeotion the other two parties. 
 
 le°ssor's\hle\o ^"^^ ^°«'^^' ^^^^ ^^ '^^^^^^ ^^^ landlord in the memo- 
 
 demise, ?uch 
 
 objection did not affect the voter's qualification, as the occupier as tenant of the demised 
 
 premises. 
 
XLIII VICTORIA. 
 
 83 
 
 randum of agreement, being examined before the Re- 
 vising Barrister as to his interest and relations to the 
 qualifying premises, which he purported to let to the 
 voter, stated that the beneficial interest in the said 
 premises was in his mother for life, by a deed of 
 settlement, of which the witness and his brother were 
 co-trustees. This deed of settlement was not asked for, 
 and was not produced. It is, therefore, to be taken to 
 be as the witness stated. It is also to be taken that 
 the witness's co-trustee under the settlement is no party 
 to the memorandum of agreement. The witness also 
 stated that at the date mentioned in the memorandum 
 of agreement as the commencement of the tenancy, viz., 
 the 1st of January, 1878, and for five or six years before 
 that time, he had himself occupied the premises in ques- 
 tion as tenant, paying rent to his mother for the same, 
 and that the said tenancy was created not otherwise than 
 by oral agreement. 
 
 The witness, being required to say in what capacity he 
 had executed the memorandum of agreement purporting 
 to let the qualifying premises to the voter, stated that 
 he did so as being tenant himself of the premises, and 
 meaning to sub-let them. 
 
 A copy of the memorandum of agreement in question 
 was annexed to the case.* 
 
 1879 
 
 FOWLE 
 V. 
 
 Tbkvor. 
 
 * The memorandum, which waa 
 executed by aU the parties, was 
 (so far as is material) as follows : — 
 " Memorandum of agreement 
 made and entered into this 2nd 
 day of July, 1878, hetweenWiUiam 
 Fmole, of NorthaUerton, &c., herein- 
 after called ' the landlord,' of the 
 one part, and GeorgeWiUiam Elliot, 
 of Langton HaU, &c., John fiwin- 
 bridge Booth, of KiUeriy, &c., and 
 WiUiam Charge Booth, of Oram, 
 kc, hereinafter called 'the 
 
 tenants,' of the other part, 
 whereby the said landlord agrees 
 to let to the said tenants, and the 
 said tenants agree to take of the 
 said landlord, all that close of 
 grass land situate, &c,, together 
 with the cow-house or shed ad- 
 joining, &c., and all that field of 
 grass land, &c. ; to hold the same 
 unto the said tenants, &c., from 
 the Ist day of January last for 
 the term of one year, and so on 
 from year to year so long as the 
 
 G 2 
 
84 
 
 MICHAELMAS SITTINGS. 
 
 1879. 
 
 roWLB 
 V. 
 
 Tebvoe. 
 
 Upon this evidence, o^ijection was taken that Mr. 
 Fowls could not, in any legal sense, he admitted to be 
 tenant of the premises of which he and his co-trustee 
 were landlords, the legal estate being assumed, and for 
 the purposes of this case to be taken, to be vested in 
 them under and by virtue of the alleged deed of settle- 
 ment. 
 
 The Eevising Barrister being of that opinion, and 
 thinking that no locus standi could be allowed to the 
 voter in the Eevising Barrister's Court in virtue of the 
 doctrine of estoppel, even if the state of the parties to 
 the contest admitted of that doctrine being raised, held 
 that no substantive interest in the premises had been 
 vested in the voter under the memorandum of agree- 
 ment, because no interest existed in Mr. Fowle qud 
 tenant; and he accordingly expunged the name from the 
 list. If he was wrong in having so done, the name was 
 to be restored. 
 
 The right of one other person depending upon the 
 same state of facts, his name also was expunged, and 
 was to be restored if, in the opinion of the Court, the 
 Revising Barrister was wrong in having expunged it. 
 
 McLeod, for the appellant. The Eevising Barrister 
 appears to have been of opinion that it was essential to 
 the franchise as a borough voter, that the landlord's title 
 
 said parties hereto shall agree, 
 determinable at the end of the 
 first or any subsequent year, upon 
 notice in writing being given by 
 either party to the other of them, 
 on or before the 1st day of July 
 prior to the end of the first or 
 any subsequent year, of the said 
 tenancy ; yielding and paying 
 therefor yearly and every year 
 
 during the continuance of the said 
 tenancy unto the said landlord, his 
 heirs and assigns, the yearly rent 
 of £34, clear of all deductions 
 whatsoever (except the landlord's 
 property tax), by equal half-yearly 
 payments, on the Ist day of July 
 and the 1st day of January in 
 each year, &c. In witness where? 
 of, &c." 
 
XLIII VICTORIA. 85 
 
 should be afiu-matively shown. In that, however, he was 1879. 
 clearly mistaken. Assuming the qualification to be in Fowlb 
 other respects sufficient, the requirements of the borough trevob. 
 franchise are satisfied if the voter has been in occu- 
 pation as tenant, whether his landlord's title was or 
 was not defective. 
 
 The Court called upon : — 
 
 It- S. Wright, for the respondent. The Revising 
 Barrister was of opinion that the voters had no interest 
 in the qualifying premises, and it is submitted that he , 
 was right. It is true that the voters came in under 
 Fowle, and consequently that as between them and Fowle 
 there was a binding estoppel, as they could not be heard 
 to dispute Fowle's title. But the question here involved 
 is one of public right, which cannot be affected by any 
 doctrine of estoppel. The parties in making out their 
 case have themselves gone into title, and the evidence 
 adduced on their behalf shows afiirmatively that they 
 have no interest in the qualifying premises. In Burton 
 V. Langham (a), it was held that the committee of a 
 lunatic's estate, who had taken part of the land into his 
 own occupation, and in an account rendered to the Court 
 of Chancery, and there allowed, had charged himself 
 with a yearly sum as rent, was not ah occupying tenant 
 within 2 Will. 4, c. 45, s. 20. And Wilde, C J., said : 
 " The account might indeed preclude the committee 
 from saying that he had not received profits to the 
 amount entered ; but it would not confer upon him an 
 .estate, or render him liable to a distress, or to an action 
 
 (») 2 Lutw. 78 ; S.C.Z C. B. 92. 
 
86 MICHAELMAS SITTINGS. 
 
 1879. ^ for rent." That language seems to show that something 
 FowLE more is necessary than a mere estoppel to render the 
 Tbevob occupation of the voter an occupation as tenant. 
 
 McLeod was not heard in reply. 
 
 Lord Coleridge, C.J. I am of opinion that the 
 decision of the Revising Barrister was wrong and should 
 be reversed. The case of Burton v. Langham (a), only 
 decided that where land, forming part of a lunatic's 
 estate, was occupied by his committee, the occupation 
 was as committee, and not as tenant. That, however, 
 is not the present case. Here the occupation of the voter 
 was clearly an occupation as tenant, whether his land- 
 lord had or had not a good title. Upon the question of 
 title I express no opinion (b). 
 
 Grove and Lindley, JJ., concurred. 
 
 - Decision reversed with costs. 
 
 Solicitors — For -A^i^ijiif 2J. j|,f. and F. Lowe, 
 Agents for Trevor, Gisbro'. 
 For I!!qj^orLdoBt 7 Williamson, Hill <& Co., 
 Agents for Fowle, NorthalleHon. 
 
 (a) 2 Imtw. 78 ; 8. C. 5 0. B. with the others to become their 
 
 92. tenant, and occupying and paying 
 
 (6) As to the legal effect of one rent under such agreement, see 
 
 of several joint tenants agreeing Cowper v. Fletcher, 6 £. di S. 464. 
 
XLIII VICTORIA. 87 
 
 James, Appellant ; Howarth, Eespondent. ^^'^^ 
 
 Nov. 20. 
 
 A T a Court held at Bath before the Barrister appointed J**® "°*^, *? 
 
 Xl re Form I (Nos. 
 
 to revise the list of voters for the city and borough of l and 2) in 
 
 •I *= theSoheduleto 
 
 Bath, the appellant objected to the name oiJohn England 41 & 42 Via. 
 being retained on the list of voters for the parish of St. only to the list 
 
 r„»v, .,„ "" which the 
 
 James. name of the 
 
 The notice of objection was signed thus : " Henrtj ^'eXd to^'and 
 James, of 36, New King Street, on the list of voters for ''°*.*° *?*' ™ 
 
 ^ ' which the 
 
 the parish of Walcot." iiame of the 
 
 objector, 
 
 There are two lists of parliamentary voters for the appears. 
 
 Therefore, 
 
 parish of Walcot, viz., list No. 1, Division 1, being the where an ob- 
 list of persons entitled under the Reform Act, or by parliamentary 
 sec. 3 of the Eepresentation of the People Act; and list borouglTc^- 
 No. 3, being the list of lodgers published under 41 & 42 ^^on^t^eYi^f 
 
 Vict. C. 26, S. 22. °^ parUament- 
 
 ary voters for 
 
 There are also two lists of burgesses for the said a particular 
 
 parish, it is not 
 
 parish of H^afco^, viz., list No. 1, Division 1, and list necessary for 
 
 -NT 1 TV • • T ^"^ '" state 
 
 JNo. 1, JJlVlSlOn 3. under what 
 
 The name of the appellant was on the parliamentary fioatiou he* '" 
 list No. 1, Division 1. Fifty-nine other persons, whose l^^lXe' '^ 
 names and qualifications were set out in the schedule, made out in 
 
 ^ divisions, in 
 
 were also obiected to by the appellant. which division. 
 
 ■' •' ^^ An objector 
 
 who, in his 
 notice of objection, should hare described himself as "on the list of parliamentary 
 voters for the parish of W," omitted from the above description, the word "parlia- 
 mentary." The Revising Barrister having declined to amend, not in the exercise of 
 discretion, but on the ground that he had no power : held that the omission was a 
 "mistake " which, under 4] & 42 Vict. u. 26, o. 28, sub-s. 2, he had power to correct 
 and ought to have corrected. 
 
 Semble, per Lord Oolericl(/e, C.J., and Lindley, J., that, unless amended, the notice 
 of objection was bad. 
 
88 MICHAELMAS SITTINGS. 
 
 ] 879. It was contended on behalf of the said John England 
 
 James that the notice of objection was insufiGcient, inasmuch as 
 HowAKTH. tlie appellant stated himself to be " on the list of voters 
 for the parish of Walcot," whereas he should have stated 
 on which of the several lists for that parish his name 
 appeared, and. also should have defined the list to be a 
 parliamentary list, as required by Form I in the Sche- 
 dule to 41 & 42 Vict. c. 26. 
 
 It was contended on behalf of the appellant that the 
 said omission did not invalidate the said notice of objec- 
 tion, and also that it was in the power of the Kevising 
 Barrister to supply the omission, under 41 & 42 Vict c. 
 26, s. 28. 
 
 The Eevising Barrister was of opinion that the said 
 notice of objection was invalid for omitting to state in 
 the description of the objector that he was on the 
 parliamentary list, and also for omitting to define on 
 which of the said several lists his name appeared, and 
 that he (the Eevising Barrister) had no power to amend. 
 He therefore retained the name of the said John, 
 England and the fifty-nine other persons on the list of 
 voters, and ordered the said cases to be consolidated. 
 
 If the Court were of opinion that such notice of objec- 
 tion was sufficient, the register was to be amended by 
 expunging their names. 
 
 Ridley, for the appellant. The Eevising Barrister has 
 held the notice of objection bad, and refused to amend 
 it ; the ground which he alleges for his refusal being, 
 that he had no power to amend. It is submitted that, 
 in holding the notice of objection bad, he has decided 
 wrongly; but, if not, that he had, at all events, the 
 power to amend. As regards the objections taken to the 
 
XLIII VICTORIA. 89 
 
 notice, one only seems of any importance, viz., the 1879. 
 omission of the objector to describe the list on which his James 
 name appeared as a " list of parliamentary voters." howakth. 
 That omission seems to have arisen from following Form 
 11 in Schedule B of 6 & 7 Vict. c. IS, instead of Form I 
 in the Schedule of 41 & 42 Vict. c. 26, where the word 
 "parliamentary " no doubt occurs. But even assuming 
 the omission of that word to have been a mistake 
 requiring amendment, it certainly was not one which 
 could mislead the person objected to, inasmuch as the 
 person objected to would know that his title as a parlia- 
 mentary voter could not be attacked, unless the objector 
 were himself on a parliamentary voters' list. An objector 
 is bound to state on what parish list his name appears. 
 If he be on a parliamentary list for that parish, then he 
 is entitled to object, otherwise he is not. Therefore, in 
 order to ascertain whether an objector can object, the lists 
 to be searched are the same, whether the word " parlia- 
 mentary " be inserted in the notice or not ; and, conse- 
 , quently, no additional trouble is thrown on the person 
 objected to by reason of the word "parliamentary" being 
 omitted from the notice. Here, as matter of fact, the 
 objector was upon a list which was both parliamentary 
 and municipal. It is true that the notice of objection 
 does not state under what head of qualification the 
 objector's name appeared, or on what division of the list. 
 But the Legislature has not required that these particu- 
 lars should be stated, and, except as regards the omission 
 of the word " parliamentary," the statutory form has 
 been strictly followed. 
 
 [Lord Coleridge, C.J. If the Revising Barrister had 
 power to amend, I think he ought to have done so.] 
 
90 MICHAELMAS SITTINGS. 
 
 1879. The power to "coi-rect any mistake" in a notice of 
 
 James objection is expressly given by 41 & 42 Vict. c. 26, s. 28, 
 
 HowARTH. sub-s. 2, and the present case strikingly illustrates the 
 
 utility of such a power. The Revising Barrister did not 
 
 exercise his discretion in declining to amend, but held 
 
 that he had no power. 
 
 Odgers, for the respondent. The notice of objection 
 was bad, and the Eevising Barrister was right in declining 
 to amend it. The note to Form I (Nos. 1 and 2) in the 
 Schedule to 41 & 42 Vict. c. 26, applies, it is submitted, 
 to the list on which the objector's name, as well to that 
 on which the name of the person objected to, appears. 
 If, therefore, there be more than one list in the objector's 
 parish, the notice of objection must state on which 
 list his name appears, and if the list be made out in 
 divisions, the notice must also state in which division. 
 In the present case, in the parish of Walcot, which was 
 the objector's parish, there were both an occupiers' list 
 and a lodgers' list ; and the occupiers' list was made out 
 in divisions. But even assuming that the note to Form 
 I does not apply to the list on which tlie objector's name 
 appears, that list must still, it is submitted, be specified 
 in the notice, which would otherwise be bad, where 
 there are several lists. Eidsforth v. Farrer (a), Crow- 
 ther v. Bradney (h), Bright v. Devenish (c). Eidsforth 
 v. Farrer (a) and Bright v. Devenish (c) were no doubt 
 cases where the objector was a freeman, and therefore 
 not on any parish list ; but those cases, at all events, 
 establish the principle, that the language of the form is 
 
 {a) 1 Lutio. 517 ; S. C. i C. B. 9. (c) Bopw. & Ph. 373 : S. C L 
 
 (6) Hopw. <£• Ph. 63; S. C. 15 R. 2 C. P. 102. 
 a B. N. S. 536. 
 
XLIII VICTORIA. 91 
 
 not to be adhered to strictly, . where the effect would 1879. 
 be to mislead the person objected to. Further, the James 
 notice of objection here was bad for the omission of the howabth. 
 word "parliamentary." The fact of the objector being 
 on a list of parliamentary voters was the foundation of 
 his title to object. It was essential therefore to the 
 validity of his notice that he should state that fact 
 distinctly, and his omission to state it at all was sufficient 
 to justify the objector in disregarding it. It is true that 
 the Revising Barrister has power under 41 & 42 Vict. c. 
 28, s. 26, sub-s. 2, to correct a " mistake " in a notice of 
 objection. But, even if that power extends to such a 
 case as this, the Revising Barrister would, it is sub- 
 mitted, have a discretion as to exercising it. Here it 
 does not appear whether he would have exercised the 
 power or not, if he had thought that he possessed it. 
 
 [Lord Coleridge, G.J. We are all of opinion that 
 this was a case in which, if the Revising Barrister had 
 the power to amend, he ought to have exercised ii The 
 question is, whether he had the power.] 
 
 It vsill be assumed, then, for the respondent, that if the 
 Revising Barrister had thought that he had the power to 
 amend the notice of objection, he would have done so. 
 But the question remains whether under sec. 28, sub-s. 
 2, he had the power. It is submitted that he had not. 
 An omission such as this is not a "mistake" within the 
 meaning of the sub-section, which must be confined to 
 cases of inaccuracy and misdescription, and cannot 
 apply where there is a total omission. Moss v. Overseers 
 of 'Lichfield (a). It can hardly be contended that "list 
 
 (a) 1 Lutw. 18i; S. 0. 1 M. <St G 
 
92 MICHAELMAS SITTINGS. 
 
 1879. of voters" would be commonly understood to mean "list 
 
 Jambs of parliamentary voters " within sec. 101 of 6 & 7 Viot. 
 
 HowABTH. *'• 1^- -^ similar point was decided in Eidsforih v. 
 
 Farrer (a), where section 101 was held to be inapplicable. 
 
 Ridley, in Tcply. Samuel v. Eitchmough (b), and 
 Olphert's Case (c) establish that, when the statutory, form 
 is followed, and the description is correct, it is not 
 necessary to specify the particular list on which the 
 objector's name appears, as that would be imposing a 
 formality not required by the Legislature. In the cases 
 cited contrd the notice of objection was held bad, be- 
 cause the description was misleading. Here no one 
 could be misled. The notice could probably be also 
 supported under sec. 101 of 6 ife 7 Vict. c. 18; but at all 
 events under 41 & 42 Vict. c. 26, s. 28, sub-s. 2, there 
 was power to amend, since an omission may be as much 
 a " mistake '' as a wrongful insertion. 
 
 Lord Coleridge, C.J. In this case, although every- 
 thing that could be said has been urged by Mr. Odgers, 
 I am of opinion that, except upon one point, there is no 
 foundation for his argument. Mr. Odgers' first conten- 
 tion was, that an objector, when he signs a notice of 
 objection, must specify the list upon which his name 
 appears, if there be more than one list in the parish ; 
 and that, if the list is made out in divisions, he must 
 also specify the division. That contention was founded on 
 the note to Form I, Nos. 1 and 2, in the Schedule to 41 
 & 42 Vict. c. 26, the language of which note is, mutatis 
 mutandis, nearly the same as the note to No. 10 in 
 
 (a) 1 Lutw. 517 ; S.O.i C. B. 9. N. S, 3. 
 
 (6) K. & a. 522 ; S. G. 13 G. B. (c) 6 Ir. G. L. 422 (M. T, 1856). 
 
xLiii vicToniA. 93 
 
 Sahedule B of 6 & 7 Vict. c. 18. Upon the construe- 1879. 
 tion of that note it is enough to say that it contains no James 
 
 V. 
 
 specific reference to the list or division on which the Howabth. 
 objector's name appears, but that the reference therein 
 is entirely taken up with the person objected to. Fur- 
 ther, whereas reason and good sense point to informa- 
 tion, such as the note requires, being given in regard to 
 the person objected to, there is nothing, so far as I can 
 see, to call for similar information in regard to the 
 objector. Assuming the objector's name to be upon 
 some list, and that he has some qualification which 
 entitles him to object, what kind of qualification he may 
 have is of no importance. In the present case, the 
 objector's name was, in fact, upon a list of parliamentary 
 voters, and if, when he signed the notice of objection 
 stating the place of his abode, he had described himself 
 as "on the list of parliamentary voters for the parish of 
 Walcot," the description so given would have been abun- 
 dantly sufficient, and it would have been impossible for 
 any one to suggest seriously that it was misleading. It 
 is true that in the case of a freeman objector, the words 
 of the form, if strictly followed, would not give accurate 
 information, but where the words of the form are 
 followed, and do give accurate information, there I think 
 such information is sufficient. In the present case the 
 name and place of abode of the objector were given, and 
 the qualification which entitled him to object could have 
 been ascertained upon reference to the list of parliamen- 
 tary voters for the parish of Walcot. 
 
 It was argued, however, for the respondent, that the 
 " list of voters " on which the objector's name appeared, 
 should have been described in the notice of objection as 
 a "list o{ parliamentary voters," and that the word 
 
94 MICHAELMAS SITTINGS. 
 
 1879^ "parliamentary" was essential to the validity of the 
 James notice, and its omission from the notice a fatal ohjeotion. 
 HowABTH. ■^nd Mr. Ridley, in arguing fot the appellant, has 
 admitted that he has a difficulty in contending that this 
 is not so. The short ground on which this argument 
 for the respondent is based is as follows : By sec. 8 of 
 41 & 42 Vict^ c. 26, the schedule, containing the forms 
 now in use, is "to be construed and have effect as if 
 enacted in the body '' of the Act. In the corresponding 
 forms given in the former Act (6 & 7 Viet. c. 18) the 
 word " parliamentary " did not occur, whereas in the 
 forms now in use it has been introduced. The present 
 Act deals with registration and revision, both parlia- 
 mentary and municipal, and inasmuch as under its 
 provisions there may now be not only lists which are 
 both parliamentary and municipal, but lists which are 
 parliamentary and not municipal, and lists which are 
 municipal and not parliamentary, there is to my mind, 
 to say the least, grave doubt whether, in order to 
 describe the list upon which the objector's name ap- 
 peared, the word "parliamentary" was not essential. 
 Upon this point, however, I desire to express no 
 positive opinion, though I incline to the view that the 
 Revising Barrister was right. 
 
 But the Revising Barrister was further of opinion 
 that he had no power to amend, although if he had 
 thought that he had the power, I understand him to 
 mean that he would have exercised it. Now, if this 
 defect be fatal, unless amended, the result of not 
 amending would be to leave about sixty bad votes upon 
 the register ; and we are all of opinion that it is a case 
 in which, if the power to amend exists, the Revising 
 Barrister ought to have exercised it. The 28th section 
 
XLIII VICTORIA. 95 
 
 of 41 & 42 Vict c. 26, sets out in great detail the 1879. 
 duties and powers of the Revising Barrister, and in James 
 terms that are sufficiently plain. The first sub-section ho\^rth 
 enacts that " he shall correct any mistake which is 
 proved to him to have been made in any list;" and the 
 second sub-section that " he may correct any mistake 
 which is proved to him to have been made in any claim 
 or notice of objection." The omission of the word 
 " parliamentary " was obviously a " mistake." It arose 
 in all probability from the objector having followed the 
 old form of notice contained in the Act of 1843, and not 
 being aware of the change which had been made in the 
 form by the recent enactment. But the objector was a 
 person entitled to object, his objection was a good 
 objection, and full notice of it had been given to the 
 person objected to. I am clearly of opinion that it was 
 within the power of the Revising Barrister to amend 
 under the above section. I do not rely on ss. 40 or 
 101 of the Act of 1843. Section 101 is not an amending 
 section, and section 40, though an amending section, 
 does not apply to notices of objection. Moreover, the 
 class of considerations with which section 40 deals is . 
 totally different from the consideration before us, viz., 
 that of remedying a mistake in an informal notice of 
 objection, by supplying an omission when no one has 
 been injured. I desire to give full effect to the power 
 conferred on the Revising Barrister by 41 & 42 Vict. 
 c. 26, and am of opinion that the present case was well 
 within his powers. The Revising Barrister would him- 
 self have amended if he had been of that opinion. It 
 is in our power now to make the correction for him 
 which he might and ought to have made himself. 
 
 Upon this ground, therefore, and upon this ground 
 
9G MICHAELMAS SITTINGS. 
 
 1879. only, I am of opinion that his decision should be 
 James reversed. 
 
 V. 
 HOWABTH. 
 
 Denman, J. In this case the Revising Barrister, after 
 holding the notices of objection to be invalid upon two 
 grounds, and that he had no power to amend, states 
 that he therefore retained the names of the several 
 persons objected to on the list of voters. But " if the 
 Court be of opinion that such notices were sufficient," 
 then, he says, " the register is to be amended by expung- 
 ing their names." It will be observed that he does not 
 say, " if the Court be of opinion that such notices were 
 sufficient, or that I ought to have amended ; " but in 
 reference to this Mr. Odgcrs has made only a fair and 
 right concession, in not asking to have the case sent 
 back for amendment. 
 
 Upon the question whether the omission of the word 
 " parliamentary " is fatal to the notice of objection I 
 desire to express no opinion. I have heard what has 
 fallen from my Lord on that point, and do not say that 
 I dissent from it, though I think that it is a matter 
 which is open to a good deal of argument, and am not 
 prepared to say that the difficulty is one which might 
 not be overcome. But I am clearly of opinion that under 
 section 28, sub-section 2, the Revising Barrister had 
 power to amend, and I think that we should be frittering 
 away this enactment, so as to render it nugatory, if in 
 such a case we held otherwise. The case is in my 
 judgment clearly one of " mistake." The objector has 
 signed his name, given his address, and stated that he 
 was " on the list of voters for the parish of Walcot." 
 He has only omitted the word " parliamentary." But 
 the fact of the objector's name being on any list except 
 
XLIII VICTORIA. 97 
 
 one of parliamentary voters would be useless, as it 1879. 
 would not entitle him to object, and one may, I think, James 
 assume it to have been known that his name was upon howabth. 
 that which alone would entitle him to object, viz., a " list 
 oi parliamentaryvoteis." On which parliamentary list 
 in the parish of Walcot his name appeared it was 
 unnecessary for him to state. The Revising Barrister 
 would certainly have made the amendment required, if 
 he had thought that he had the power. In my judg- 
 ment, he had the power, and ought to have amended, 
 and we ought now to amend for him. 
 
 LiNDLET, J. The word "parliamentary" is un- 
 doubtedly an important word here, and I must own that, 
 if there had been no power of amendment, I should have 
 thought its omission invalidated the notice. But 
 section 28, sub-section 2, gives power to the Revising 
 Barrister to amend in the case of a " mistake," and an 
 omission may be as much a mistake as the putting in 
 what ought not to be inserted. I am therefore of 
 opinion that the Revising Barrister had power to 
 amend. 
 
 The other objection to the notice was, that the 
 objector did not state on which of the several lists for 
 the parish his name appeared. But the answer to that 
 objection is that the Act of Parliament does not require 
 that he should do so. 
 
 The decision of the Revising Barrister must therefore 
 
 be reversed. 
 
 Decision reversed, without costs. 
 
 SoHcilors — For Appellant, Ellis, Mimday c£ Co. 
 For Respondent, Rogerson & Ford, 
 for 
 T. Bicketts, Bath. 
 
98 
 
 MICHAELMAS SITTINGS. 
 
 ,g-g PiCKARD, Appellant; Baylis, Respondent. 
 
 Nov. 19, 29. 
 
 The list of new AT a Court held by the Revising Barrister appointed 
 anta.^required ^0 I'evise the lists of voters for the borough of Chelsea, 
 hylve^^^^s^ ^^^^y PicJcard claimed, as a lodger, in respect of 
 th°it^*f"^ residence within the parish of St. Mary Abbott's, 
 September, is Kensinqton, to have his name inserted in the list of 
 
 nota"Kst"of ^ 
 
 voters within persons entitled to vote at the election of members to 
 
 sub-s3. 1 or 6 of -r. • 
 
 41 & 42 Vict, serve m Parliament for the parliamentary borough of 
 Seid, there- Chelsea. Such claim v?as in the Form H, No. 2, of the 
 <Mes imposed Schedule to the Parliamentary and Municipal Eegistra- 
 under those ^jg^ ^^^ jgTS, and was as follows :— 
 
 sub-seotionson ' ' 
 
 a Kevisiug 
 Barrister, as 
 to amendment, 
 have no appli- 
 cation to Buoh 
 a list. 
 
 The exer- 
 cise of the 
 power con- 
 ferred on a 
 Revising Bar- 
 rister under 
 sub-s. 2 of 
 
 Name of Claim- 
 ant in full, 
 Surname being 
 first. 
 
 Pichard, 
 Henry. 
 
 Description of 
 
 Rooms occupied, 
 
 and whether 
 
 furnished or 
 
 not. 
 
 Two Rooms, 
 First Floor. 
 
 Street, Lane, or 
 other Place, and 
 Number (if any) 
 
 of House in 
 
 which Lodgings 
 
 situate. 
 
 46, Abingdon 
 Road. 
 
 Amount 
 
 of Rent 
 
 paid. 
 
 Butler. 
 
 Name and Address 
 
 of Landlord or other 
 
 Person to whom 
 
 Rent is paid 
 
 Edmund Parker, 
 Carpenter. 
 
 and such claim was duly signed by the claimant and 
 
 was regular in all respects. 
 
 correcting mis- was duly witnessed, and 
 
 taltes in a 
 
 except as hereinafter stated. 
 
 2. In the second column of his claim, the claimant had 
 
 claim is 
 discretionary. 
 Where, 
 
 Revising'fiar- omitted to State whether his lodgings were furnished or 
 to ameld af unfumished ; but the Revising Barrister held that this 
 
 claim of a new 
 
 lodger (by inserting the amount of rent and the landlord's address, which had been 
 omitted, on these particulars being supplied at the revision), upon grounds which were 
 consistent with his having exercised his discretion correctly in so decUning the 
 Court refused to reverse his decision. 
 
 Sec. 23 makes the declaration of a lodger annexed to his claim primA facie evidence 
 of his qualification. Semhle, per Lord Coleridge, C.J., and DenmMn, J., that this 
 section does not apply to a new lodger claimant (Lindley, J., dubitanie). 
 
XLIII VICTORIA. 99 
 
 was a defect which he conld amend upon proper evidence, 1879. 
 and proper evidence was given that his lodgings were in Pickard 
 fact unfurnished. Baylis. 
 
 3. The claimant had further omitted to state in the 
 fourth column of his claim whether he paid any rent, 
 nor could that information he gathered from any other 
 part of his claim. 
 
 4. Evidence, satisfactory to the Revising Barrister, was 
 given in Court as to what was the amount of rent which 
 the claimant actually paid, namely, 6s. 6d. a week ; 
 hut the Revising Barrister held that in cases in which 
 lodger claimants had wholly omitted to give the in- 
 formation which Parliament required them to give 
 upon the face of their claims, he ought not to supply 
 the defect upon evidence given for the first time before 
 him in Court ; and that this applied with especial force 
 to the fourth or rent column of lodger claims, because 
 the form in which such claims were originally required 
 to be made by the Representation of the People Act, 
 1867, Schedule G, Form No. 1, had been expressly 
 superseded by the Form H, No. 2, to the Parli.ameutary 
 and Municipal Registration Act, 1878, and by such new 
 form the lodger was for the first time expressly required 
 to state the amount of rent paid, so that it would, in the 
 Revising Barrister's opinion, be contrary to the policy 
 of the later Act to allow such information to be given 
 for the first time before the Barrister in Court; and 
 the Revising Barrister accordingly held that this 
 objection was fatal to the claim. 
 
 5. The claimant had further omitted to state the address 
 of his landlord in the fifth column of the said olaim, 
 nor could that information be gathered from any other 
 part of his claim. 
 
V. 
 
 Baylis, 
 
 100 MICHAELMAS SITTINGS. 
 
 1879. 6. Evidence, satisfactory to the Eevising Barrister, 
 
 PioKABD was given in Court, as to what was the address of the 
 claimant's landlord, namely, the same address as that 
 of the claimant; but the Eevising Barrister held that he 
 could not supply the landlord's address in the fifth 
 column upon such evidence : first, because it was ad- 
 mitted before him that his predecessors had always 
 held this to be a fatal objection to a lodger claim, and 
 there was for this purpose no substantial difference 
 between Form No. 1, Schedule G, to the Act of 1867, 
 and Form H, No. 2, of the Schedule to the Act, 1878, 
 and the Eevising Barrister thought that he ought to 
 follow the established practice ; and, secondly, because 
 such practice was, in the Eevising Barrister's judgment, 
 correct, for that the object of Parliament in requiring 
 lodger claimants to give that information was that any 
 person interested might, from the information given 
 by the claim, have the opportunity of making inquiries 
 of the landlord or other person to whom the rent was 
 thereby stated to be paid, for the purpose of testing the 
 validity of the claim before the holding of the Eevising 
 Barrister's Court, and that that object would be frus- 
 trated if the defect were allowed to bo supplied upon 
 evidence given for the first time before the Barrister in 
 Court ; and the Eevising Barrister accordingly held that 
 this objection also was fatal to the claim, and upon both 
 the above grounds he disallowed the claim. 
 
 The claims of 8 other persons (a), who had omitted 
 to state in the fifth column of their respective claims the 
 address of the landlord or other person to whom their 
 rents were respectively paid, were disallowed upon the 
 
 (it) It waa conceded on the all claiming for the first time, as 
 argument thnt the claimants were lodgers. 
 
XLIII VICTORIA. 101 
 
 same ground as that stated in the sixth paragraph, and 1879. 
 the appeals in all the cases were consolidated. Pickabd 
 
 V. 
 
 Baylis. 
 Grompton, for the appellants. First, if the Court be of 
 opinion that the claims were bad, if not amended, it is 
 contended that the Revising Barrister had power to 
 amend them, and that, possessing that power, it was 
 imperative on him to exercise it. Secondly, that if he 
 had a discretion on the subject of amendment, he did 
 not exercise it, but declined to amend on the ground 
 that he had no power. It is necessary to refer shortly 
 to the enactments in reference to the lodger franchise. 
 Sec. 4 of 30 & 31 Vict. c. 102 first created this fran- 
 chise. Sec. 30, sub-section 2, provided that the lodger 
 should renew his claim to be registered in every year, 
 and gave a form of claim, for which Form H, No. 2, in 
 the Schedule of 41 & 42 Vict. c. 26, has now been sub- 
 stituted. Sec. 22 ofthe last-mentioned Act required the 
 overseers to make out in each year a list of lodger voters 
 who had been placed on the register of the previous 
 year, and who, before the 2oth of July, had claimed in 
 respect of the same lodgings. It is conceded, however, 
 here, that the appellants are none of them old lodgers, so 
 that their rights cannot, it must be admitted, depend 
 on section 22. Section 23 is, however, prayed in aid of 
 any defects in their claims, and possibly may even render 
 any amendment of them unnecessary, inasmuch as, by 
 the express terms of section 23, the declaration annexed 
 to a lodger's claim is, for the purpose of revision, to 
 be primd facie evidence of his qualification. In every 
 case before the Court, that declaration has been 
 made. But, next, we have to consider the powers and 
 duties of the Eevising Barrister in reference to amend- 
 
102 MICHAELMAS SITTINGS. 
 
 1879. ment. These are now regulated, so far as regards 
 PicKAiiD borough revision, by 41 & 42 Vict. c. 26, s. 28, which 
 Baxlis. li^^ l^ssn substituted for 6 & 7 Vict. c. 18, s. 40, and 
 has considerably enlarged the powers of amendment 
 which previously existed. Sub-section i enacts: "He," 
 i.e., the Kevising Barrister, "shall correct any mistake 
 which is proved to him to have been made in any list." 
 Sub-section 2: "He may correct any mistake which is 
 proved to him to have been made in any claim," It is 
 submitted that the present case falls within sub-section 
 1; so that, although the word "may" in sub-section 2 
 must not necessarily be taken as merely permissive, 
 it is unnecessary to rest the case on that sub-section. 
 It is not, indeed, contended that the Revising Barrister 
 is, under all circumstances, bound to amend, but that 
 the correct limitation to his powers under sub-section 1 
 (which, under any circumstances, applies only to cases of 
 mistake) is to be found in sub-section 13, which forbids 
 any amendment being made which changes the qualifi- 
 cation. It is true that, in order to bring the case within 
 sub-section 1, it must be shown that the appellants 
 were in a ''list" within the meaning of that sub-section. 
 But their names were undoubtedly on the list of lodger 
 claimants, which the overseers have to publish, in 
 accordance with Form K, No. 2, in the Schedule of 41 
 & 42 Vict. c. 26, on or before the 1st of September; 
 and that, it is submitted, is a "list" within the meaning 
 of the sub-section. Further, it is submitted that it is 
 a "list"' within sub-section 6, the terms of which are 
 wider than those of section 40 of 6 & 7 Vict. c. 18. 
 And the evidence which the Legislature has required 
 to be adduced, in order to justify an amendment under 
 Bub-section 6, has admittedly been supplied. It is 
 
XLTII VICTORIA. 103 
 
 not denied, however, that the question arising under 1879. 
 sub-section 6 is the same as under sub-section 1, and Piokaed 
 that in each case the list of new lodger claimants must batlis. 
 be shown to be a " list " within the meaning of the 
 sub-section. But, on principle, it is submitted that, 
 in cases of bond fide mistake, no sound distinction can 
 be taken between the duty to amend a "list," and the 
 duty to amend a "claim ; " and that, if the list of new 
 lodger claimants cannot beheld to be a "list" within 
 sub-section 1, then the word " may," in sub-section 2, 
 should be construed as imperative. The duty to amend 
 would arise under that sub-section on it appearing that 
 the case was one of mistake, and on the omitted parti- 
 culars being supplied by evidence. The words, "it 
 shall be lawful," have been frequently construed as im- 
 perative under similar circumstances. 
 
 But, secondly, it is submitted that a perusal of the 
 case makes it clear that the Revising Barrister here has 
 not attempted to exercise a discretion, but has declined 
 to amend, on the ground that he had no power. In 
 reference to the omission of the landlord's address, he 
 has expressly decided that he could not supply it, and, 
 in so deciding, he has misinterpreted the Act. 
 
 E. Clarke, for the respondent. The thing which the 
 Revising Barrister is appointed to revise is not a list 
 or catalogue of claims, but a " list of voters ; " and his 
 duties consist, not in constructing such a list, but in 
 revising it. The work of revision, speaking broadly, 
 consists in expunging from the "list of voters" the 
 names of those who have been rightly objected to, in 
 retaining those who have not, and in iTiserting those 
 who, being only in the position of claimants, have given 
 
PiCKABD 
 V. 
 
 Baylis. 
 
 104 MICHAELMAS SITTINGS. 
 
 1879. due notice of their claims, and established them at the 
 revision. Now the " list " mentioned in 41 & 42 Vict. 
 0. 26, s. 28, Bub-ss. 1 and 6, must clearly, it is appre- 
 hended, refer to a " list of voters," since the words " lists 
 of voters " occur at the commencement of the section. 
 And, if so, unless it can be shown that the appellants 
 were on a "list of voters," the duties as to amendment, 
 which are imposed on the Revising Barrister by sub- 
 sections 1 and 6, can have no application to the appellants' 
 case. It is true, indeed, that, in county revision, the 
 list of claimants in respect of property has by express 
 enactment (6 & 7 Vict. c. 18, s. 6), been made part 
 of the " list of voters," and, as such, that list no 
 doubt forms the subject of revision. But in borough 
 revision the course of legislation has been different. 
 In regard to borough revision, as matters stood 
 under 6 & 7 Vict. c. 18 (apart from the list of 
 freemen, with which we are not here concerned), the 
 only " lists of voters " which the Eevising Barrister had 
 to revise were the lists which it was the duty of the 
 overseers to make out. Persons omitted from those 
 lists had to send in claims, and the only way in which 
 such persons could get their names transferred to the 
 lists of voters was, by the Revising Barrister himself 
 inserting them under the powers conferred on him 
 by section 38. The 30 & 31 Vict. c. 102 first introduced 
 the lodger franchise, and, under sections 4 and 30 of that 
 statute, the lodger was under the necessity of sending in 
 a fresh claim in every year. Upon this claim being 
 substantiated at the revision, it became the duty of the 
 Eevising Barrister, under the powers conferred on him 
 by sec. 38 of 6 & 7 Vict. c. 18, to insert the name in 
 the list of voters for the year. But in the following 
 
XLIIT VICTORIA. 10a 
 
 year the lodger was under the necessity not only of 1879. 
 
 claiming again, but of again-establishing his vote. The pickabd 
 41 & 42 Vict. c. 26 has, however, altered that state of baylis. 
 things. By section 22, a lodger who has once substantiated 
 his claim may, by sending in a claim on or before the 
 25th of July in respect of the same lodgings, get his 
 name entered by the overseers on a list, which, by the 
 express terms of that section, is to be deemed a "list of 
 voters." Lodgers are thus divided into two classes, viz., 
 the old lodgers and the new ones; the former of whom, 
 by express legislation, are to be on a list of voters. On 
 the part of the appellant, the Court is now asked to say that 
 the other class, as to which no such legislation exists, 
 also forms part of the list of voters. Such a contention, 
 it is submitted, is in direct conflict with the legislation 
 on the subject. That the list referred to in section 28, 
 sub-section 1, of 41 & 42 Vict. c. 26, is a list of voters, 
 and not a mere catalogue of claims, seems clear from a 
 reference to the other sub-sections, which deal with the 
 duties of the Revising Barrister in "expunging " names 
 from the "list," and in "retaining" them. That lan- 
 guage is appropriate if the subject-matter dealt with 
 is a list of voters, but quite inappropriate if it be a 
 catalogue of claims. It is therefore with confidence 
 submitted that sub-sections 1 and 6 of section 28 are 
 inapplicable to the present case, and that the only sub- 
 section under which an amendment could have been 
 made was sub-section 2. The terms of that sub-section 
 are, however, discretionary, and here the Revising 
 Barrister has exercised his discretion, with which the 
 Court will not interfere. 
 
 Cromptan was heard in reply. 
 
106 MICHAELMAS SITTINGS. 
 
 1879. Lord CoLEBioaE, C.J. I am of opinion that the 
 
 PioKAED decision of the Eevising Barrister was correct, and must 
 Batiis. ^6 afSrmed. Two questions only arise for our deter- 
 mination : first, whether the Revising Barrister was 
 bound to amend ; secondly, whether, if not bound, he 
 has exercised such discretion as he possessed in refusing 
 the amendment. I am of opinion that in this case the 
 Revising Barrister was not bound to amend, but that 
 he had power to exercise a discretion on the subject. 
 
 The words of section 28, sub-section 1, under which 
 the Revising Barrister was requested to amend, are as 
 follows: " He shall correct any mistake which shall be 
 proved to him to have been made in any list." If, there- 
 fore, the mistakes which were here proved to have been 
 made were mistakes in a " list " within the meaning of 
 that sub-section, the Revising Barrister was bound by 
 the terms of the Act to amend them. In order to sustain 
 his decision, it must be shown that they were not; and 
 I am of that opinion. 
 
 In deciding this case it is necessary to consider the 
 duties of the Revising Barrister in reference to the 
 " lists " that come before him, under the earlier, as well 
 as under the more recent, legislation : first, as we find 
 them exercised under the 6 & 7 Vict. c. 18 ; then, under 
 that statute, as altered by the 30 & 31 Vict. c. 102 ; 
 and lastly, under the recent statute of 1878. 
 
 I pass at once from the subject of county revision 
 with only this remark, that equally in counties as in 
 boroughs the duty of the Revising Barrister is to revise 
 not to construct lists. 
 
 Passing to the revision in boroughs, the duty of the 
 Revising Barrister, under the 6 & 7 Vict. c. 18 (prior 
 to the introduction of the lodger franchise), was to take 
 
XLIII VICTORIA. 107 
 
 the lists presented to him by the overseers and the town 1879. 
 clerk, and to go through them, retaining the names of piokaed 
 those who had not been objected to, inserting those who BAywa. 
 had duly claimed, and who at the revision established 
 their qualifications (the insertion being made either 
 vianic proprid, or by initialing the insertion of a clerk), 
 and expunging those who had been rightly objected to. 
 The list so made up, consisting of voters retained and 
 claimants inserted, became, when signed by the Eevising 
 Barrister, the register for the ensuing year, and thus 
 there was a continual revision of an existing list. 
 
 Such was the state of things until 1867, when the 
 30 & 31 Vict. c. 102, passed. By that Act the franchise 
 was for the first time conferred upon lodgers; and it 
 being considered of the essence of that franchise that 
 the lodgings which conferred the franchise should 
 remain the same, the Legislature thought it right to 
 insist that a lodger should in every year send in a fresh 
 claim. The lodger, therefore, as compared with other 
 voters, was placed in this condition — possibly one of 
 some hardship — that whereas any other voter, who 
 either by claiming and establishing his vote, or satis- 
 fying the overseers that he was entitled, had once got 
 himself placed upon the list, remained there, without 
 being under the necessity of reclaiming or of main- 
 taining his vote unless it was objected to; the lodger, 
 although he had proved his qualification, had neverthe- 
 less in every year to stand in the technical position of 
 a fresh claimant. And on behalf of the lodger it was no 
 doubt represented, that from this cause he was placed 
 in a less favourable condition than other voters. 
 
 Such was the state of things from 1867 up to 1878, 
 when the 41 & 42 Vict. c. 26, passed, and section 22 of 
 
108 MICHAELMAS SITTINGS. 
 
 1879. that Act deals with the case of a lodger. That section, 
 PioKARD in effect, enacts, that when once a lodger has established 
 Batiis. ^i^ qualification to the satisfaction of the Eevising , 
 Barrister, he is in respect of that qualification substan- 
 tially in the position of any other voter, though his 
 name has to appear upon the list under a separate 
 heading. I am of opinion that section 23 is amply 
 satisfied by holding that it applies only to the case of 
 such lodgers. When once upon the register, although 
 in each year they must still go through the form of 
 sending in their claims, they are entitled to rely on the 
 declarations thereto annexed as primd facie evidence 
 of their qualifications, and any one who objects to them 
 must do so in the same way, and with the same formali- 
 ties, as if the objection were to any other voter. 
 Although the claim and declaration must still be sent 
 in, that is the only disadvantage to which such lodgers 
 are now subject. 
 
 But the persons with whom we have to deal here are 
 not in that position. They are all of them new lodger 
 claimants, who are not at present on any list of voters. 
 JEx hypothesi, they are not on any list of voters other 
 than lodgers, and they are not on the only lodger list 
 which the form in the Schedule (Form D, No. 3) gives, 
 since that form applies to the lodger list made out 
 under section 22, and to that list exclusively. "We have 
 nothing to do with the list of freemen. What other list, 
 then, is there which the Revising Barrister is called 
 upon to revise ? The answer is, none. The catalogue 
 of new claims, though published by the overseers, is not 
 a list in which any one is retained, or from which any 
 one is expunged, but merely a catalogue from which the 
 lists may be supplemented. It follows, therefore, that 
 
XLIII VICTORIA. 109 
 
 the mistakes here proved to have been made were not 1879. 
 mistakes in a " list," within section 28, sub-section 1, piokaed 
 and that the Revising Barrister was not bound to batlib. 
 correct them under that sub-section. But, if not mis- 
 takes in a " list," they must be mistakes in a claim, 
 which the Revising Barrister may correct under sub- 
 section 2. It is said that the word " may," like the 
 words " shall be lawful," sometimes means, '' must ; " 
 but following, as it here does, the word " shall " in the 
 previous sub-section, I think it involves the exercise of 
 a discretion. 
 
 The next question is, has the Revising Barrister here 
 exercised a discretion ? Construing the case fairly, I 
 think that he has, and that by the statements in the 
 case he means us so to understand. The Revising 
 Barrister has set out at length his reasons for not 
 amending, which are consistent with his having acted 
 on discretionary grounds. It is true that in dealing 
 with the objection, founded on the omission of the 
 landlord's address, he uses the words " I held that I 
 could not supply it." But he adduces discretionary 
 reasons. He says that he was following the practice 
 of his predecessors. If he had thought, as matter of 
 law, that he had no power to amend, he was bound to 
 disregard the practice. If the practice were wrong, the 
 reason he adduced for not amending would, no doubt, 
 be bad, but he proceeds to say that the practice was in 
 his judgment correct; "for that the object of Parliament 
 in requiring lodger claimants to give that information 
 was, that any person interested might, from the infor- 
 mation given by the claim, have the opportunity of 
 making inquiries of the landlord, or other person to 
 whom the rent was thereby stated to be paid, for the 
 
110 MICHAELMAS SITTINGS. 
 
 1879. purpose of testing the validity of the claim before the 
 PioKABD holding of the Revising Barrister's Court ; and that 
 Baylis. t^^'' object -ivould be frustrated if the defect 'were 
 allowed to be supplied upon evidence given for the 
 first time before the Bamster in Court." And he states 
 that he " accordingly," that is, for the reasons above 
 given, "held that this objection was also fatal to the 
 claim," and disallowed it upon both the above grounds. 
 I think that he has used the words '' could not " in a 
 way not uncommon in the exercise of judicial functions, 
 not as meaning that he had no power, but that the 
 reasons given satisfied him that he ought not to exer- 
 cise it. 
 
 I am of opinion, therefore, that in this case the 
 Revising Barrister has exercised his discretion ; and 
 further, that he has done so upon good grounds, and 
 that his decision was correct, and should be aflBrmed. 
 
 Denman, J. I am of the same opinion. During the 
 argument, however, I confess that I have entertained 
 grave doubts, which are not altogether removed ; and I 
 am glad that we took the course of having the case 
 re-argued, and grateful to Mr. Clarke for his able assist- 
 ance (a). 
 
 Three questions of law seem to me to have been 
 discussed. First, assuming that an amendment was 
 necessary, in order that the votes might be sustained, was 
 the Revising Barrister bound to amend ? Secondly, did 
 section 23 dispense with the necessity for any amend- 
 
 (a) When the case was origin- to communicate to tlie Attorney- 
 ally argued, no counsel appeared General their desire that counsel 
 for the respondent. The Court, should be instructed for the re- 
 after hearing the appellants' coun- spondent, and the case re-argued, 
 sel, intimated that they proposed 
 
V. 
 BATLI3. 
 
 XLIII VICTORIA. Ill 
 
 ment by making the declarations primd facie evi- 1879. 
 dence of the qualification ? Thirdly, assuming the piokaud 
 Revising Barrister was not bound to amend, has he 
 exercised a discretion in refusing, or has he held him- 
 self bound to refuse the amendment ? On all these points 
 I am of opinion that there must be judgment for the 
 respondent. 
 
 The first question turns on a few sections of the Act 
 of 1878. Section 22 does not apply to the appellants' 
 case. It is clear from its terms that it can only apply 
 to a person who has been on the register of voters as a 
 lodger in the previous year, and who on or before the 
 25th of July has sent in a claim in respect of the same 
 lodgings. The overseers make out, under section 22, "a 
 list of all persons so claiming," which by express 
 enactment is to be deemed a "list of voters;" and section 
 23 can only, as appears to me, refer to claims made by 
 such persons. Then on section 28 depends the question, 
 whether the Revising Barrister was bound to amend. 
 It enacts that "a Revising Barrister shall, with respect 
 to the lists of voters for a parliamentary borough 
 .... which he is appointed to revise, perform the 
 duties and have the powers following: — (1) He shall 
 correct any mistake which is proved to him to have been 
 made in any list; (2) He may correct any mistake 
 which is proved to him to have been made in any claim." 
 If the appellants were old lodger voters, undoubtedly 
 sub- section 1 would apply; but they are new claimants, 
 whose names Imve never appeared on any list of voters; 
 and looking at that distinction, and for the other reasons 
 which my Lord has stated,. I think they are within 
 sub-section 2, which relates to "claims,"' and not within 
 sub-section 1, which relates to " lists." I am therefore 
 
112 MICHAELMAS SITTINGS. 
 
 1879. of opinion that the Kevising Barrister was not bound to 
 PioKARD amend, but that he had a discretion to exercise. 
 Batlis. ^^^ ^^ ^*^ argued, and for some time I thought not 
 
 without some ground, that section 23 applied, and that 
 every person " claiming to vote as a lodger," came 
 within the terms of that section, so that the declaration 
 annexed to his notice of claim became primd facie 
 evidence of his qualification. Having heard the argu- 
 ment, however, I think it tolerably clear that that 
 section only applies to the cases previously dealt with in 
 section 22, and must be read " claiming to vote as a 
 lodger " having been previously on a list of voters. 
 Although a more limited interpretation is thus put upon 
 the language of the section, I think the interpretation 
 a fair one, inasmuch as the wider interpretation would 
 give to lodgers claiming for the first time a privilege 
 which no other class of voters possess. It must not, how- 
 ever, be taken as certain, that if the section did include 
 the case of lodgers claiming for the first time, the right 
 of the appellants would be made out, since the section, 
 where it applies, only makes the declaration primd facie 
 evidence of the qualification, and does not dispose of the 
 question as to the amendment of the claim. That is a 
 question which ought to remain open, and may possibly 
 arise on a future occasion. 
 
 We come now to the third point. Assuming the 
 Revising Barrister was not bound to amend, has he 
 exercised a discretion in not amending ? It is true that 
 on this point more accurate language might have been 
 employed, but, upon the whole case, it appears to me 
 tolerably clear that the Revising Barrister did intend to 
 exercise his discretion. In regard to the omission of the 
 rent, he says that he held that he " ought not to supply 
 
XLUI VICTORIA. 113 
 
 the defect," and he proceeds to allege discretionary 1879. 
 reasons for his refusal. In regard to the omission of piokahd 
 the landlord's address, he no doubt says that he held baVlis. 
 that he " could not " supply it. But my Lord has 
 pointed out how that expression is perfectly consistent 
 with the exercise of a discretion. The reasons adduced 
 are discretionary, and the substance of what the Revising 
 Barrister says is, that he could not supply the defect 
 without doing injustice, not that he had no power. In 
 the result, I am of opinion that he exercised a discretion 
 here, which I cannot say he has exercised unreasonably. 
 
 LiNDLEY, J. lam of the same opinion. The claimants 
 are all of them persons claiming for the first time as 
 lodgers ; and, on a fair construction of the case, I think 
 it appears that the Eevising Barrister in declining to 
 amend has exercised his discretion. As regards the 
 fourth paragraph, this seems clearly to be so ; and as 
 regards the sixth, although its language is more doubtful, 
 I agree, for the reasons given by my Lord and my brother 
 DenTuan, that the case shows that the Revising Bar- 
 rister has exercised his discretion. 
 
 The question, therefore, is reduced to this : "Was 
 the exercise by the Revising Bai-rister of the power to 
 amend compulsory, or was it a matter as to which he 
 had a discretion? The answer to this depends on the 
 meaning of the word " list," in 41 & 42 Vict. c. 26, s. 28; 
 and to my mind it is clear that it means the list of voters 
 under revision, and not a mere list or catalogue of claims. 
 A review of the sections bearing on the question will, I 
 think, make it clear that the appellants were not on any 
 list of voters. 
 
114 MICHAELMAS SITTINGS. 
 
 1879. The lodger francliise was created by 30 & 31 
 
 PioKARD Viot. c. 102, s. 4, and from that section, coupled with 
 Batlis. section 30, sub-section 2, it appears that under that Act 
 a lodger's claim had to be renewed in evei-y year, 
 according to a form numbered 1 in Schedule G, and 
 " every such claim " had, " after the last day of July, and 
 on or before the 25th day of August," to "be delivered 
 to the overseers," who were required to publish the 
 particulars of such claim on or before the 1st day of 
 September, "in a separate list, according to the form 
 numbered 2 in the said Schedule Gr." On referring 
 to that form, we find it to be a list of persons claiming 
 (in respect of lodgings) to have their names inserted in 
 the list of voters. Then sub-section 3 enacts, that " so 
 much of section 18 of 6 & 7 Vict. c. 18 as relates to the 
 manner of publishing lists of claimants . . . shall apply 
 to every such claim and list, and all the provisions of the 
 38th and 39th sections of the same Act with respect to 
 the proof of the claims of persons omitted from the lists 
 of voters, and to objections thereto, and to the hearing 
 thereof, shall, so far as the same are applicable, apply to 
 claims and objections, and to the hearing thereof under 
 this section." Therefore, as regards lodger claims, this 
 sub-section refers us back to the powers which the 
 Eevising Barrister possessed under section 38 of 6 & 
 7 Vict. c. 18, of inserting claimants, omitted by the 
 overseers, in the list of voters. Until they were so in- 
 serted, they were not upon the " list," nor could they be 
 expunged therefrom until they were there. This state 
 of things continued from 1867 to 1878. In 1878 
 lodgers were for the first time divided into two classes. 
 The first consisting of those who were on the list of 
 voters for the previous year, and who claimed in respect 
 
XLIII VICTORIA. 115 
 
 of the same lodgings; the second, of those who were 1879. 
 claiming the lodger franchise for the first time. The PioKiKD 
 first class, although they have to send in claims, are now batlis. 
 placed hy the overseers on a list, Form D, No. 3, 
 which, by the express terms of 41 & 42 Vict. c. 26, s. 22, 
 is to be deemed a list of voters. The second class (with 
 which we have here to deal) are not upon that list, but 
 are placed by the overseers upon a list of claimants, of 
 which the form is given in the Schedule, Form K, No. 2. 
 If their claims succeed at the revision, the Revising 
 Barrister inserts them in the list of voters ; but, until so 
 inserted, they are not in the " list," but only in the 
 position of claimants to be placed there. We come then 
 to section 28, which deals both with lists and claims, 
 but in terms which differ. It enacts: "A Revising 
 Barrister shall, with respect to the lists of voters for a 
 parliamentary borough .... which he is appointed 
 to revise, perform the duties and have the powers 
 following: (1) He shall correct any mistake which is 
 proved to him to have been made in any list " — " list " 
 evidently meaning list of voters, both there and in sub- 
 section 3, and in the other sub-sections where the word 
 occurs — ^but with regard to a claim, there is no clause 
 making it incumbent on the Revising Barrister to correct 
 mistakes. Sub-section^. enacts: " He mai/ correct any 
 mistake which is proved to him to have been made in any 
 claim." I might leave the case there, with only this re- 
 mark, that the Revising Barrister having a discretion, 
 the reasons he has given show that he has exercised it 
 rightly. It may well be that in a small borough, the ab- 
 sence of a landlord's name might mislead no one, and that 
 such a mistake might be properly corrected; while, on the 
 other hand, in a large constituency greater strictness might 
 
116 MICHAELMAS SITTINGS. 
 
 1879. be necessary, and it might be desirable not to encourage 
 PioKABD such an accumulation of blunders as those which are 
 Batlis. disclosed in the present case. 
 
 With regard to the construction of section 23 I enter- 
 tain more doubt. The language is general, and I am 
 not yet satisfied that it can be limited in the way that 
 has been suggested. But even if the wider interpreta- 
 tion of that section be correct, as I am disposed to think, 
 that does not, in my judgment, affect the present question, 
 inasmuch as section 23 applies to qualification, with 
 which here we are not dealing. The objection here is 
 to the form of the claim, and section 8 makes form a 
 matter of some importance. The claimant has inserted 
 the word "butler" where he ought to have stated the 
 amount of the rent, and he has omitted to state the 
 address of his landlord. And the Revising Barrister 
 may think right to decline to pass a claim presented to 
 him in so slovenly a form. But tho omitted particulars 
 form no part of the qualification. The qualification 
 depends upon the value of the lodgings, not upon the 
 amount of rent paid for them. It is even possible that a 
 lodger might have a qualification, although he had paid 
 no rent at all for his lodgings. But in that case he 
 ought to say so. I am therefore of opinion that, 
 although the Revising Barrister had power to amend 
 here, he had a discretion as to doing so. The discretion 
 is one which must be exercised according to the circum- 
 stances of the particular case, and in the present case 
 I think it has been exercised correctly. 
 
 Lord Coleridge, C.J. As counsel for the respondent 
 has been instructed at the request of the Court, we do 
 
XLIII VICTORIA. 117 
 
 not consider it a case in which the appellant should pay 1879. 
 
 costs. PlOKAKD 
 
 V. 
 
 Decision affirmed, without costs. Batlis. 
 
 Solicitors — For Appellant, Halse, Trustram d Go. 
 For Eespondent, Baylis. 
 
118 
 
 HILARY SITTINGS. 
 
 Foster and Others, Appellants; Medwin and 
 BosTOCK (Returning Officer of Horsham), 
 Respondents. 
 
 1880. 
 
 Feb. 26. 
 The amalga- ^^T a Court held by the E,e vising Barrister for the 
 OTder oUhe borough of HoTsliam, objections were duly made to 
 ■"^enf Borrd™' ^^^ names of the appellants being retained on the list 
 made under ^f persons entitled to vote at the election of a member 
 
 the Divided ^ 
 
 Parishes and to Serve in Parliament for the borough of Horsham. 
 
 Poor Law 
 
 Amendment The following is a copy of the notice served on each ot 
 
 Act, 1876, of 
 
 an isolated part the appellants : — 
 
 within the' " I hereby give you notice that I object to your name being retained 
 
 limits of a par- " on the list of persons entitled to vote at the election of a member to 
 liamentary^ "serve in Parliament for the parliamentary borough of Sorsham, in 
 Doroug , wi „ respect of property occupied within the parish of Horsham, ou the 
 side those " following ground, viz., that your alleged qualification is not vrithin 
 
 limits, does not "the parliamentary borough of Horsham." 
 affect the 
 
 rights of eleo- Section 5 of 2 Will. 4, c. 45, enacts : — 
 
 tors, whose 
 
 qualifications " That the borough of New Shoreliam shall for the purposes of this 
 
 lie within the " Act include the whole of the rape of Bramber, in the county o£ 
 
 partsoamalga- "Sussex, save and except such parts of the said rape as shall be 
 
 ™ , ^,' , ' "included in the borough of Mm-sltMm by an Act to be passed for that 
 as before, for a j r 
 
 the parlia- " Purpose in this present Parliament. 
 
 borough. Section 7 enacts : — 
 
 " That every city and borough in England which now returns a 
 " member or members to serve in Parliament, and every place sharing 
 " in the election therewith (with certain exceptions, therein mentioned), 
 " shall for the purposes of this Act include the place or places, 
 " respectively, which shall be comprehended within the boundaries of 
 " every such city, borough, or place, as such boundaries shall be settled 
 
XLIII VICTORIA. 
 
 119 
 
 " and described by an Act to be passed for that purpose in this present 
 " Parliament, which Act, when passed, shall be deemed and taken to - 
 " be part of this Act, as fully and effectually as if the same were 
 " incorporated herewith." 
 
 Bj section 35 of 2 & 3 Will. 4, c 64 (being the Act 
 referred to in sections 5 and 7 of 2 Will. 4, c. 45), 
 after reciting the above provisions, and declaring that 
 the several cities, boroughs, and places, whereof the 
 boundaries were so to be settled and described, as in the 
 said recited Act is mentioned, are the several cities, 
 boroughs, and places which are specified in the schedule 
 to this Act annexed, marked 0, it is enacted as fol- 
 lows : — 
 
 " Be it further enacted and declared, that the several cities, boroughs, 
 " and places specified in the said schedule to this Act annexed (marked 
 " 0), shall, as to the election of members or a member to serve in 
 " Parliament, respectively include the places and be comprised within 
 " the boundaries which in such schedule are respectively specified and 
 " described in conjunction with the names of such cities, boroughs, 
 " and places respectively.*' 
 
 Schedule is as follows : — 
 
 " Horsham, the parish of Horsham.'' 
 
 In the year 1876 an Act to provide for the better ar- 
 rangement of divided parishes and other local areas, and 
 to make sundry amendments in the law relating to the 
 relief of the poor in England (39 & 40 Vict. c. 61) was 
 passed. 
 
 Section 1 enacts: — 
 
 " Where any parish shall be divided so as to have its parts or any of 
 " them isolated in some other parish or parishes or otherwise detached, 
 " the Local Government Board may, as and when they shall see fit, after 
 " local inquiry to be held upon notice duly given to the clerk of the 
 " peace of the county or counties in which the parts of the parish are 
 " situated, and in the parishes to be affected in the manner prescribed 
 " or usually adopted therein for the publication of parochial notices, make 
 " an order, to take effect at the expiration of some period not less than 
 " three months from the day when a copy of such order shall have been 
 "sent to the overseers, either for constituting separate parishes out of the 
 " divided parish, or for amalgamating some of the parts thereof with 
 
 1880. 
 
 FoaiER 
 
 v. 
 Med WIN. 
 
120 
 
 HILARY SITTINGS. 
 
 1880. 
 
 Foster 
 
 V. 
 
 Medwin. 
 
 " the parish or parishes in which the same may be locally included, or 
 - " to which they may be annexed, as shall appear to such board to be 
 " most convenient, and providing where requisite for a change of the 
 " county of the parish or part of a parish." 
 
 Section 3 enacts : — 
 
 " From and after the 25th day of March next ensuing the day when 
 '■ such order, if not objected to, shall take effect, and in the case of a 
 "provisional order next ensuing the date of the Act of Parliament 
 " confirming the same, the several parts of every parish to which such 
 " order shall apply shall be and continue to be constituted in the 
 " manner directed by the said order, and the officers of the several 
 " parishes affected thereby shall be empoweied, and shall be required 
 " to act as if such parishes had been constituted in the manner directed 
 " prior to the issue of such order." 
 
 Section 4 enacts: — 
 
 "Nothing herein contained shall apply to the ecclesiastical divisions 
 "of parishes, nor to the constitution of school districts, without the 
 " sanction of the Education Department, or shall alter the boundaries 
 " of any municipal borough, and for the purposes of the election of 
 " members of Parliament and of burgesses in municipal boroughs, of 
 " the jury lists, of the action of the justices, and of the police and con- 
 " stables, the parishes shall continue to be deemed unaltered until new 
 "lists are made and new constables are appointed." 
 
 The appellants claimed to have their names regained 
 on the list in respect of property situated in what was, 
 prior to and until the making of the order of the Local 
 Government Board hereinafter mentioned, an isolated 
 and detached part of the parish of Sullington, known as 
 Broadhridge Heath. 
 
 At the date of the said order of the Local Government 
 Board, the said Broadhridge Heath was within the par- 
 liamentary borough of New Shoreham, as defined in 
 section 5 of 2 Will. 4, c. 45, and was not within the 
 parliamentary borough of Horsham. 
 
 A copy of an order of the Local Government Board 
 was produced. It was duly miide pursuant to the 
 39 & 40 Vict. c. 61, and was not objected to, and not a 
 provisional order within the meaning of section 3 of the 
 
XLIII VICTORIA. 
 
 121 
 
 said statute, and was in all respects and at all material 
 times a valid and subsisting order (a). 
 
 Article 1 of the said order was as follows : — " All 
 those two isolated and detached parts of the said parish 
 of Sullington, known as ' Broadhridge Heath ' and 
 
 1880. 
 
 FOSTEK 
 V. 
 
 Med WIN. 
 
 (a). The order ran thus : — 
 Rearrangement of detached 
 portion of parish. 
 JJoj'sham and T/takeham Unions. 
 Horsham and Sullington Parishes. 
 To the Guardians of the 
 Poor of Horsham Union, in 
 the county of Sussex. 
 
 To the Guardians of the 
 Poor of the Thakeham Union, 
 in the said county. 
 
 To the Churchwardens and 
 Overseers of the Poor of the 
 parish of Horsham, in the said 
 Horsham Union. 
 
 To the Churchwardens and 
 Overseers of the Poor of the 
 pariah of Sidlington, in the 
 said Thakeham Union. 
 
 And to all others whom it 
 may concern. 
 Whereas [here sections 1, 2 and 
 3 of the Divided Parishes and 
 Poor Law Amendment Act, 
 1876, are recited], and whereas 
 by an order, dated the 16th day 
 of April, 1835, the Poor Law 
 Commissioners declared that the 
 several parishes and places named 
 in the margin thereof comprising 
 the Thakeham Union and includ- 
 ing the parish of Sullington, in the 
 said county of Sussex, should be 
 noited for the administration of 
 the laws for the relief of the poor. 
 And whereas by an order, 
 dated the 27th day of August, 
 1835, the Poor Law Commissioners 
 declared that the several parishes 
 and places named in the margin 
 thereof composing the Horsham 
 Union, including the parish of 
 Horsham, in the county of Sussex, 
 should be united for the adminis- 
 tration of the laws for the relief of 
 the poor. 
 
 And whereas the said parishes 
 of Sullington and Horsham are 
 
 respectively parishes within the 
 meaning of the above recited Act. 
 
 And whereas the said parish of 
 Sidlington is divided so that cer- 
 tain parts thereof known as Broad- 
 bi-idge Heath and BroadJtridge, 
 which are isolated and detached 
 from the remainder, are locally 
 included within or annexed to the 
 said parish of Horsham ; and a pro- 
 posal having been made that such 
 isolated and detached parts should 
 be separated from the parish to 
 which they belong, and that each 
 such part should be amalgamated 
 with the parish in which it may 
 be locally included, or with some 
 parish to which it may be annexed, 
 the Local Government Board 
 caused local inquiry to be held 
 after notice duly given as required 
 by the above recited Act, and 
 report has been duly made there- 
 on. 
 
 Now therefore, we,, the Local 
 Government Board, in pursuance 
 of the powers given by the statutes 
 in that behalf, hereby order as 
 follows : — 
 
 Article 1. All those two isolated 
 and detached parts of the said 
 parish of SuUington, known as 
 Broadbridge Heath and Broad- 
 Iridge, which are locally included 
 within or annexed to the said 
 parish of Horsham, shall cease to be 
 parts of the said parish of Sui- 
 Imgton, and shall be amalgamated 
 with the said parish of Horsham. 
 
 Article 2. This order shall take 
 effect on the 1st day of November, 
 1878. 
 
 Given under the seal of office of 
 the Local Government Board, this 
 26th day of July, in the year 1878. 
 
 L. S. 
 
 G. Sclater Booth, President. 
 TJwmas Salt, Secretary. 
 
122 HILARY SITTINGS. 
 
 1880. ' Broadbridge; which are locally included or annexed 
 Foster to the said parish of Hortham, shall cease to be parts 
 Mbdwin. of the said parish of Sullington, and shall he amalga- 
 mated with the said parish of Horsham." 
 
 New lists of voters had been duly made, and new 
 constables had been duly appointed for the parish of 
 HorshaTn, subsequently to the 25th of March, 1879. 
 
 It was contended on behalf of the respondent Medwin, 
 that the property, in respect of which the appellants 
 claimed to have their names retained on the list, was 
 within the parliamentary borough of N'ew Shoreham, and 
 not within the parliamentary borough of Horsha'ni, and 
 that, therefore, the appellants were not entitled to have 
 their names retained on the list. 
 
 It was contended on behalf of the appellants, that the 
 property, in respect of which they claimed to have their 
 names retained on the list, had ceased to be within the 
 parliamentary borough of New Shoreham, and was now 
 within the parliamentary borough of Horsham, and that, 
 therefore, the appellants were entitled to have their 
 names retained on the list. 
 
 The Kevising Barrister decided that the property, in 
 respect of which the appellants claimed to have their 
 names retained on the list, was within the parliamentary 
 borough of New Shoreham., and was not within the 
 parliamentary borough of Horsham, and that, therefore, 
 the appellants were not entitled to have their names 
 retained on the list of persons entitled to vote for a 
 member for the borough of Horsham. 
 
 The appellants had required the Eeturning Officer of 
 the borough of Horsham to be made a respondent. 
 
 A. L. Smith, for the appellants. The appellants are 
 
XLIII VICTORIA. 123 
 
 entitled to vote for the parliamentary borough of 1880. 
 HorsJiam, and the Eievising Barrister was wrong in Fosteb 
 deciding that they were not. By the order of the Local medwin. 
 Government Board, which is admittedly valid, Broad- 
 hridge Heath, in which the appellants' qualifications 
 are respectively situated, has ceased to form part of the 
 parish of Sullington, which is within the parliamentary 
 borough of New ShoreJiam, and has been amalgamated 
 with and become part of the parish of Horsham. The 
 parish of Horsham lies entirely within the parliamentary 
 borough of the same name, the boundaries of the parish 
 and parliamentary borough having, by 2 & 3 Will. 4, c. 
 64, s. 35, and Schedule 0, been made identical. The 
 question therefore is, whether the operation of 39 & 40 
 Vict. c. 61, is to be restricted to poor law purposes, or 
 whether it applies to parliamentary purposes also. On 
 the part of the appellants it is submitted that the latter 
 is the true construction, and that this is evidenced by 
 the language of the enactment. Section 1 provides that 
 "where requisite" the order shall provide "for a change 
 of the county " of the part of the parish, which is the 
 subject of the order. If the operation of the Act were 
 restricted to poor law purposes, that provision would be 
 unnecessary. But section 4 furnishes still stronger 
 evidence of the intention of the Legislature to extend 
 the Act to parliamentary purposes. It enacts that "for 
 the purposes of the deration of members of Parliament, 
 and of burgesses in municipal boroughs, of the jury 
 lists, of the action of the justices, and of the police 
 and constables, the parishes shall continue to be deemed 
 unaltered until new lists are made and new constables 
 are appointed." Here new lists of voters have been made, 
 and new constables have been appointed. 
 
124 HILARY SITTINGS. 
 
 1880. [Lord Coleridge, C.J. Does that section mean more 
 
 Foster than this, that after the alteration has taken place the 
 Medwin. lists of voters are to be published in the new parish 
 instead of the old one ? The construction, for which 
 you contend, would have the effect of disfranchising 
 borough voters, in the event of part of a parish being 
 taken out of a parliamentary borough, and amalgamated 
 with a parish outside the borough.] 
 
 The converse might also happen, in which case there 
 would be persons enfranchised. In the present case, 
 however, there will be neither enfranchisement nor dis- 
 franchisement, since in both boroughs the qualification 
 is the same. But by the 2 & 3 WiU. 4, c. 64, s. 35, 
 and Schedule 0, the limits of the borough of Horsham 
 are to be the same as those of the parish, and in the 
 event of one being altered, the effect is to alter the 
 other also. Under the 30 & 31 Vict. c. 102, as well as 
 under the 2 Will. 4, c. 45, rating is an essential element 
 of the franchise, and here the rating of the appellants 
 will be to a parish within the borough of Horsham, and 
 not within that of New Shorehain. Section 23 of 6 & 7 
 Vict. c. 18 contemplates the lists of voters being pub- 
 lished on a church door which is within the borough 
 where the qualification lies. Here, if the respondents' 
 contention prevail, the lists will be published in the 
 parish of Horsham, and therefore outside the limits of 
 the borough of New Shoreham,. 
 
 Goldie, for the respondent Medwin. The decision of 
 the Eevising Barrister was correct. The boundaries settled 
 by the 2 & 3 Will. 4, c. 64, are fixed, not fluctuating, 
 boundaries. They cannot be altered except by Act of 
 
XLIII VICTORIA. 125 
 
 Parliament. But, looking to the title and preamble, as 1880. 
 well as to the whole scope, of 39 & 40 Vict. c. 61, it is "j-oster 
 submitted that there can be no doubt as to the intention medwin 
 of the Legislature to confine the operation of that enact- 
 ment to poor law purposes. It is true that the language 
 of section 4 creates some diflBculty; but the contention of 
 the respondent is, that the alteration of the parishes for 
 the purpose " of the election of members of Parliament," 
 which that section contemplates, refers merelj- to the 
 change in the parochial ofiScers by whom the hsts of 
 voters are to be made out, and of the area within which 
 such lists are to be published. Thus, while the overseers 
 of Horsham will be the proper persons to make out, and 
 publish within the newly constituted parish of Horsham, 
 the lists of voters for that part of the parish which was 
 previously part of Sullingto'ti, the electors within that 
 part of the parish will vote, as before, for the borough 
 of New Shoreham. In that, however, there is nothing 
 novel. The Boundary Act of 1832 (2 & 3 Will. 4, c. 64) 
 illustrates the mode in which the arrangement will take 
 effect. Thus, Schedule gives numerous instances of 
 parishes lying partly within and partly without the boun- 
 dary of a borough. Where that is the case, the overseers 
 of the whole parish must necessarily make out and 
 publish the lists of voters for that part of the parish 
 which lies within the borough. The borough of 
 Midhurst, which appears in Schedule immediately 
 after the borough of Horsham,, has within its boundary 
 many such parts of parishes. The construction con- 
 tended for on the other side would place in the hands 
 of the Executive the power of enfranchising and disfran- 
 chising voters, vphich never could have been within the 
 contemplation of the Legislature. Section 1 of 39 & 40 
 
126 HILARY SITTINGS. 
 
 1880. Vict. c. 61, while providing for notice being given to the 
 FosTBK clerks of the peace of counties, in which parts of parishes 
 Medwin. affected by the order of a Local Government Board are 
 situated, makes no provision for a similar notice to the 
 town clerk or returning ofl&cer, when the parts affected 
 are in a borough. If the parliamentary franchise had 
 been intended to be affected, such provision would have 
 been made. 
 
 J. F. Cleric, for the returning officer. The difficulty of 
 construing section 4 has probably arisen from the words 
 " until new lists are made and new constables are ap- 
 pointed" having been added to the section, when in 
 committee. The context seems to show that "new 
 lists " must mean, not lists of voters, but " jury lists," 
 jury lists as well as lists of voters being annually made. 
 A possible construction of section 4 is, that the altera- 
 tion therein referred to only applies to jury lists and 
 constables, and that, " for the purposes of the election 
 of members of Parliament, and of burgesses in municipal 
 boroughs," the parishes are to remain unaltered. " For 
 the purposes of burgesses in municipal boroughs " must, 
 it is submitted, mean for the purposes of the lists of 
 burgesses in such boroughs. 
 
 A. L. Sinnith replied. 
 
 Lord Coleridge, C.J. This was an appeal from the 
 decision of the Eevising Barrister, who revised the lists 
 for the borough of Horsham, by certain persons hereto- 
 fore resident in the borough of Neiu Shoreham, but 
 who, having been placed by the overseers on the lists 
 for the borough of Horsham, sought to have their names 
 retained there so as to entitle them to vote for that 
 
XLIII VICTOEIA. 127 
 
 borough. The Eevising Barrister held that they were 1880. 
 not entitled, and expunged their names; and I am of Fosteb 
 opinion that his decision was correct, and must be Mbdwin. 
 affirmed. 
 
 The question turns on certain sections of the 
 Divided Parishes and Poor Law Amendment Act, 1876 
 (39 & 40 Viet. c. 61), and, undoubtedly, as regards one 
 section, which we have to construe, I must own that I 
 do not profess to understand it, or to be able to construe 
 its words entirely to my own satisfaction. But I approach 
 the question with this guiding principle in my mind, 
 that, regard being had to the preamble of the Act, and the 
 general scope of its provisions, it is my duty to interpret 
 it so as not to affect the parliamentary franchise, unless 
 I am compelled to do so. Now the preamble of the 
 Act is entirely apart from parliamentary purposes. It 
 is as follows : " Whereas many parishes in England are 
 divided, and some unions are formed in a manner which 
 renders their arrangements inconvenient, and whereas 
 other unions are too large in extent for the purposes of 
 the relief of the poor and other local administration, and it 
 is expedient that provision should be made for remedying 
 these inconveniences; and whereas other amendments are 
 required in the laws for the relief of the poor in England, 
 &c.''; and the last section, giving the short title, enacts : 
 " This Act may be cited and described for all purposes 
 as ' The Divided Parishes and Poor Law Amendment 
 Act, 1876.' " Therefore, both in the beginning and end, 
 so far as may be, the words of the Act confine its opera- 
 tion to poor law purposes. Section 1 empowers the 
 Local Government Board in certain cases to divide 
 parishes, and to make provisions for the divided parishes, 
 giving notice to the clerks of the peace of counties, and 
 
128 HILARY SITTINGS. 
 
 1880. in the parishes to be affected by the division ; and also 
 Foster to change, for the purposes of the -Act, the boundaries of 
 Medwin counties. I asked during the argument and was told, 
 no doubt correctly, that the county rates were naade 
 liable for certain local purposes, which may be called 
 parochial. For the purpose of parochial and poor law 
 administration, the change of counties may be very con- 
 venient ; and, as for such purposes the boundaries of 
 counties to be affected may be altered, there is a sufiS- 
 cient explanation why notice of such intended alteration 
 should be given to the clerk of the peace. It has been 
 admitted, and indeed is apparent from the statute, that 
 no corresponding notice is to be given, either to the 
 town clerks in boroughs where there is a municipality, 
 or to the returning officer, or other person interested, in 
 boroughs such as Horsham and New Shoreham, where 
 no municipality exists. 
 
 I come now to section 4, on which the appellants 
 rely, and of which I have already said that I am unable 
 to give any clear explanation. It enacts : " nothing herein 
 contained," i.e., no change in the parishes, "shall apply 
 to the ecclesiastical division of parishes, nor to the con- 
 stitution of school districts, without the sanction of the 
 Educational Department, nor shall alter the boundaries 
 of any municipal borough " — with so much of the section 
 we have nothing to do, and it may therefore be put 
 aside — " and for the purposes of the election of members 
 of Parliament, and of burgesses in municipal boroughs, 
 of the jury lists, of the action of the justices, and of the 
 police and constables, the parishes shall contimie to he 
 deemed unaltered until new lists are made and new con- 
 stables appointed:' Then I suppose it must follow that 
 when new lists are made and new constables are ap- 
 
XLIII VICTORIA. 129 
 
 pointed, the parishes may, for certain purposes, cease 1880. 
 to continue to be deemed unaltered, and shall be Foster 
 
 V, 
 
 altered. The question is, what are those purposes? Mbdwin. 
 The election of members of Parliament is, in some 
 respects, a parochial matter, inasmuch as certain things 
 have to be done by the overseers of parishes in relation 
 to the election of members of Parliament. Persons 
 entitled to vote for members of Parliament are placed 
 in lists which parish officers have to make, and which 
 enter into the question of the election of members of 
 Parliament. Therefore, for some purposes no doubt, 
 this alteration of the parishes will affect not the 
 electors, but the election of members of Parliament, 
 inasmuch as certain things in relation to the election of 
 members of Parliament will have to be changed. And 
 so with regard to "burgesses in municipal boroughs," 
 whether burgesses is there to be construed " members 
 for municipal boroughs," or whether, as I am disposed 
 to think, Mr. Clerk is right in saying that the use of 
 the word " burgess," in the sense of member of Parlia- 
 ment for a borough, is now an old-fashioned expression, 
 and the section should be read, "for the purposes of 
 burgesses in municipal boroughs; "such purposes being, 
 as he suggests, to some extent parochial, inasmuch as 
 the overseers have to make out in municipal boroughs 
 lists of the burgesses who constitute the municipal 
 voters, and the parochial divisions of parishes have 
 to be considered. Therefore, for certain purposes under 
 this section, it would seem true that parishes are to be 
 altered in regard to the election of members of Parlia- 
 ment, and burgesses in municipal boroughs. 
 
 Holding, then, to the governing principle that the par- 
 liamentary franchise is, if possible, not to be affected, 
 
130 HILARY SITTINGS. 
 
 1880. how can we interpret and give effect to this section with- 
 FosTER out interfering with it? It seems to me that what 
 Mbdwin. was suggested in argument is, at any rate, one solution, 
 •viz. : that in this case the isolated portion of the parish 
 of Svllington will be, for certain purposes, attached to 
 the parish of Horsham, but that, as there is no indica- 
 tion that this is to affect the parliamentary borough, or 
 the election of members of Parliament except as to the 
 preparation of the lists, all that will happen will be this : 
 the names of voters whose quaHfications lie in that 
 portion of the parish of Sullington which is amalgamated 
 with the parish of Horsham will have to be put on a 
 list and fixed upon the doors of churches in the parish 
 of Horsham, but the voters will still vote, as before, for 
 the borough of New Shoreham,. Mr. Goldie has drawn 
 our attention to a similar state of things existing under 
 the Boundary Act of 1832 (2 & 3 Will. 4, c. 64), where, 
 to take the instance he gave, various portions of parishes 
 form part of the general description of the borough 
 of Midhurst, and while these portions are included 
 in the borough, the other portions are left outside the 
 borough in the county. In such cases the overseers would 
 have to put on the doors of their churches two sets of lists ; 
 viz., the lists of county voters, and, so far as the borough 
 of Midhurst extends into their parish, the list of Mid- 
 hurst voters. That is what the overseers of Horsham 
 will have to do here. They will have to put upon the 
 doors of the churches in Horsham lists of the persons 
 whose qualifications are in that part of the new parish 
 of Horsham which is comprised in the borough of New 
 Shoreham. That seems to me to give, at all events, one 
 adequate interpretation to this section. It is plain that 
 to construe section 4, as Mr. Smith contends it should 
 
V. 
 
 Medwin. 
 
 XLIII VICTORIA. 131 
 
 be construed, would, in all places where a considerable 1880. 
 district is attached to a borough (as is the case in many j-oster 
 boroughs in England), have the effect of giving to a 
 department of the Executive Government the power, 
 where they are altering parishes for poor law purposes, 
 to disfranchise a large number of persons, by throwing 
 them into the county, inasmuch as, the borough and 
 county franchises being different, there would probably 
 be many persons in such cases who would not simply 
 exchange a vote in one place for a vote in another, but 
 be altogether disfranchised. Mr. Smith says, with truth, 
 that the converse might also happen, and that the same 
 department of the Executive Government might bring 
 portions of a county into a borough, and thereby enfran- 
 chise. I agree that, so far as the argument rests on 
 disfranchising only, that would not be an unfair answer, 
 but the argument remains that this construction admits 
 of the enfranchising and disfi-anchising of what may 
 be large numbers of persons at the discretion of a depart- 
 of the Executive Government. That is a startling con- 
 clusion, to which, if driven, we must come, but to which 
 we should certainly come with reluctance. 
 
 For these reasons, therefore, without pretending to 
 construe this section so as to satisfy myself that I have 
 given effect to every word of it, I think it tolerably clear 
 that it does not mean to affect the parHamentary franchise, 
 or to give the power of enfranchisement or disfranchise- 
 ment to a department of the Executive Government. 
 Therefore, having indicated what I think it may mean, 
 it is enough to say that I am reasonably clear that it 
 does not mean what alone could satisfy the claim of the 
 appellants. 1 am, therefore, of opinion that they have 
 failed in their contention, and that the decision of the 
 
 K 2 
 
132 HILARY SITTINGS. 
 
 1880. Revising Barrister must be affirmed, with costs. As 
 FosTEB regards the returning officer, he was made a respondent 
 Medwin. against his will, and I think, therefore, that he ought to 
 have his costs also. 
 
 LiNDLEY, J. I am of the same opinion. Like my 
 Lord, I do not profess to understand the 4th section ; 
 but it sometimes happens that without seeing exactly 
 what a thing does mean, one may see perfectly clearly 
 what it does not mean, and so it is here. I think it 
 plain that this section was not meant J;o affect the 
 franchise, and my reason for that opinion is that this 
 Act of Parliament is directed, as the preamble shows, 
 to a different subject-matter altogether. [His Lordship 
 read the preamble.] There is not a word there which 
 justifies the inference that anything affecting the 
 franchise was the object of the Act, nor is there 
 the slightest reason for supposing that any alteration 
 whatever in reference to it was contemplated, except 
 what may be gathered from the very obscure words of 
 section 4, on which this case turns. Up to a certain 
 point that section is free from ambiguity and consistent 
 with the rest of the Act. The difficulty arises from the 
 introduction of some words, the full effect of which it 
 is very difficult to discover. [His Lordship read the 
 section down to the words, "the parishes shall continue 
 to be deemed unaltered."] Everything is plain so far, 
 but then come the words which create the difficulty, 
 " until new lists are made and new constables are ap- 
 pointed." What are the consequences which are to 
 follow when new lists are made and new constables are 
 appointed? Some consequences obviously, and Mr. 
 Smith contends that we are compelled to say that among 
 
XTJII VICTORIA. 133 
 
 the consequences will be this, that the boundaries of 1880. 
 
 the borough of Horsham shall be altered for election Foster 
 
 purposes. The answer to that is, that we are not medwidt. 
 
 forced to that construction, if any other consequence 
 
 can be suggested ; and two other consequences have 
 
 been, one by Mr. Ooldie, and the other by Mr. Clerk. 
 
 I think the section admits of Mr. Goldie's construction, 
 
 though Mr. Clerk's is to my mind perhaps rather the 
 
 more preferable, viz., that the only consequence which 
 
 follows affects the jury lists and the constables. I am 
 
 not, however, prepared to say which construction is 
 
 right ; but I am prepared to say that the words are not 
 
 sufficiently plain to force us to the construction that, for 
 
 the purpose of electing members of Parliament, the 
 
 boundary of the borough of Horsham, which was fixed 
 
 by statute, has been altered. The words do not say so, 
 
 and we are not compelled to do so. I think the appeal 
 
 must be dismissed, with costs. 
 
 Decision affirmed. 
 Solicitors — For Appellants, Robinson, Preston & Stow, 
 
 Agents for 
 Bostock <fc Rawlinson. 
 For Respondents, Carritt S Son, 
 
 Agents for Bedford, Horsham. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 COMMOX PLEAS DIYISM 
 
 OP 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDEE STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DUEINO 
 
 MICHAELMAS SITTINGS, 1880, 
 
 ra THE 
 
 FORTY-FOURTH YEAR OF QUEEN VICTORIA. 
 
 Sandebs, Appellant ; Searson, Eespondent. 
 A T a Court held by the Eevising Barrister appointed 1880. 
 
 xL Nov. 13. 
 
 to revise the list of voters for the Northern Division of '- — ^ 
 
 the caxynty oi Norikami'pton on the 20th September, <<ia„(joccu- 
 1880, at Peterborough, in the said division, the appellant Pjfthl°ho'™e 
 duly objected to the name of the respondent being *''^'l^j,j®"2 '^^ 
 retained in the list of voters in respect of the occupa- '^ ^^< >mp"rt 
 
 ^ '■ something 
 
 tion of lands and tenements under " the Representation more than 
 
 contempora- 
 neous occupa- 
 tion under the same landlord. 
 
 Therefore, where within the Parliamentary borough of P. a house and land, a mile 
 apart from one another, had during the qualifying period been contemporaneously 
 occupied under the same landlord, but under separate demises commencing from 
 different dates, and with no community of purpose in the occupation, and the 
 Revising Barrister had allowed the occupier's county franchise for the land upon the 
 ground that it was not " occupied together with " the house within the meaning of the 
 section, the Court, upon appeal, affirmed the Revising Barrister's decision. 
 
V, 
 
 Seakson. 
 
 136 MICHAELMAS SITTINGS. 
 
 1880. of the People Act, 1867 " (30 & 31 Vict. c. 102), for the 
 Sandebs parish of Peterborough in the said division. 
 
 The name and qualification of the respondent ap- 
 peared as follows (under the appropriate heading) : — 
 
 Sem-son Samuel \ Bridge Street | Occupier of , land | Flag-fen. 
 
 It was proved that the voter had occupied since 1869 
 a close of land in Flag-fen, in the borough of Peter- 
 borough, as tenant to Mr. Fitzwilliam, at a rent which 
 would confer upon him the right of voting as a £12 
 occupier under " the Representation of the People Act, 
 1867." Some years afterwards he took a house in Bridge 
 Street, in the borough of Peterborough, under the same 
 landlord, and has occupied the same to the present 
 time, and in respect of that house he enjoys the right 
 of voting in an election of members of Parliament for 
 the borough of Peterborough. 
 
 Since taking the house he has become tenant of, and 
 still occupies under the same landlord, another piece of 
 land in Flag-fen, within the borough, which also is rated 
 at upwards of £12 per awnu/m. The lands in Flag-fen 
 are apart from each other, and are both distant upwards 
 of a mile from the voter's borough qualifying residence 
 in Bridge Street, Peterborough. Each of the three 
 occupations was held under a Lady-day tenancy, and 
 each parcel was held at a separate rent, and it was 
 proved and admitted that a separate notice to quit would 
 be required for each property. 
 
 The appellant duly objected to the name of the 
 respondent being retained on the list of voters for the 
 parish of Peterborough, in the said division of the 
 county of Northampton, on the ground that each of 
 the pieces of land in Flag-fen was " occupied together 
 with " the house in Bridge Street, within the meaning 
 
V. 
 
 Seaeson. 
 
 XLIV VICTORIA. 137 
 
 of sec. 25 of 2 Will. 4, c. 45, and that such occupation 1880. 
 conferred upon him the right of voting for the borough ~SANDEKg~ 
 of Peterborough. 
 
 In answer to the objection it was urged, that the 
 lands in Flag-fen were not occupied together with the 
 said house within the meaning of the said section, but 
 that the occupation of the lands was distinct from the 
 occupation of the house. 
 
 The Revising Barrister decided that the voter had 
 the right to have his name retained in the said list of 
 voters for the said division of the said county in 
 respect of the occupation of the said lands under "the 
 Eepresentation of the People Act, 1867," and retained 
 the name in the said list. 
 
 Due notice of appeal from his decision was given. 
 
 If the decision of the Eevising Barrister was correct, 
 such list was to remain, as revised, without alteration; if 
 his decision was incorrect, the name of the respondent 
 was to be expunged from the said list. 
 
 Merewether, Q.C., for the appellant. The respondent 
 is in occupation of a house and two plots of land, all 
 held by him as tenant under one landlord, and all lying 
 within the limits of the Parliamentary borough. Being 
 admittedly entitled to vote for the borough in respect 
 of the house, he is claiming notwithstanding to vote for 
 the county in respect of the land. Whether, or not, he 
 is entitled to do so must depend on the meaning to be 
 ascribed to the words "together with" in sec. 25 of 
 the Reform Act. That section, read in conjunction 
 with sec. 59 of 30 & 31 Vict c. 102, prevents the 
 county franchise from being acquired for " land occupied 
 together with a house," whenever the premises so occu- 
 pied are capable of conferring the occupation franchise 
 
 M 2 
 
138 MICHAELMAS SITTINGS. 
 
 1880. for the borough. To ascertain when they are so, we 
 Sandbks must refer to sec. 27, which confers the borough franchise 
 Seakson. ^^ *^® occupier of a " house . . . with any land . . . 
 occupied therewith as tenant under the same landlord." 
 Whefe therefore the land and house are simultaneously 
 occupied under one landlord, inasmuch as the land and 
 house together form the borough qualification of the 
 occupant, the land cannot be utUized to qualify him 
 also for the county. The Revising Barrister appears, 
 however, to have supposed that the words "together 
 with " in sec. 25 were intended to refer, not to time, 
 but to locality; and, consequently that, in order to 
 bring the case within sec. 25, and so prevent the land 
 from being made available for the county franchise, it 
 is essential that the house and land should be actually 
 in contact. But that view, it is submitted, cannot be 
 supported. It never could have been the intention of 
 the Legislature to give to sec. 25 so restricted an opera- 
 tion. Such a construction would largely swell the 
 number of cases in which householders, living in 
 boroughs, would be enabled to vote twice for the occu- 
 pation of borough property, viz. once for the borough 
 franchise, and once for that of the county. Wherever 
 a garden, or a field, of the rateable value of £12 was 
 detached, however slightly, from the occupier's house, a 
 double vote would be thereby acquired. And the 
 number of such cases would be much greater since the 
 Act of 1867, by which the value of the house has 
 ceased to be any longer material to the borough 
 franchise in all cases of inhabitant occupiers. 
 
 As regards authorities, the judgment delivered in 
 the two cases, argued together, of Burton v. Aston (a) 
 and Capell v. Aston (a) is express to show that it was 
 
 (a) 2 Lutw. 155 ; S. C. 8 C. S. 11. 
 
XLIV VICTORIA. 139 
 
 the object of the Legislature to prevent land Ij^ing 1880. 
 within a Parliamentary borough from conferring a sandees 
 double franchise — for the borough and the county. It sbabson. 
 a,lso gives support to the position that in all cases 
 where land is capable of being applied to the purposes 
 of the borough franchise under sec. 27, it is excluded 
 from conferring the county franchise under ss. 24 
 and 25. The question, it is submitted, is whether the 
 land is capable of being so applied, not whether, or 
 not, it is required for the purpose. It is true that in 
 regard to the meaning of the words " together with " 
 Wilde, C.J., in delivering judgment in those cases did 
 not express any positive opinion, but said (a) "the words 
 'together with ' in the first part of the clause, and the 
 words ' therewith ' in the latter part, seem to import 
 either a local contiguity, or a similarity of tenure." But 
 in the subsequent case of Collins v. Town Clerk of 
 Tewkeshu'i'y (b) the meaning of those words was ex- 
 pressly ascertained, it being decided that they refer to 
 simultaneous occupation under the same landlord and 
 not to the question of local contiguity. 
 
 [LiNDLET, J. If those words refer to time, and time . 
 oifdy, your contention would seem correct.] 
 
 [Gkove, J. That case only decides that they do not 
 refer to place onZy.] 
 
 The case is also reported in the Common Bench 
 Series under the name of Collins v. Thomas (c), and, 
 as there reported, Maule, J., at the conclusion of the 
 argument, said : " A man may have a qualification con- 
 sisting of a counting-house five stories high, and a 
 garden in another part of the borough, if both are 
 
 (a) 2 Lutw. 156 ; S. C. & O. B. (5) 2 iMw. 219, 221. 
 
 11. (c) 12 0. B. 641. 
 
Seaksok. 
 
 140 MICHAELMAS SITTINGS. 
 
 1880. held under the same landlord." That dictum strongly 
 Sandebs supports the appellant's contention here. It is true 
 that the decision of that case depended on sec. 27, 
 which defines the conditions of the borough franchise, 
 and not on ss. 24 or 25, which deal with the exclusion 
 of the franchise for the county ; but, as is pointed out 
 by Wilde, C.J., in Gapell v. Aston (a), ss. 24 and 25 
 can only be explained by means of sec. 27, which is 
 incorporated with them by reference. Proctor v. 
 Annison (6) is a further authority to show that the 
 true question in these cases is whether the subject 
 matter is capable of qualifying for the borough 
 franchise ; for, if so, it disqualifies for the county. 
 
 Webb V. Overseers of Aston near Birmingham (c), 
 was also referred to. 
 
 Hensman, for the respondent. In order to qualify 
 for the borough, and disqualify for the county, franchise, 
 it is undoubtedly necessary that the occupation of the 
 qualifying house and land should be simultaneous, and, 
 where the voter is only a tenant, that it should be 
 under one landlord. But the words " occupied together 
 with," in sec. 25, and " occupied therewith," in sec. 27, 
 of the Reform Act, import, it is submitted, something 
 more than this. It is clear that these words cannot 
 have reference to time alone, otherwise they are mere 
 surplusage, since the proviso in sec. 27 expressly pro- 
 vides that the premises, meaning of course the qualify- 
 ing premises, shall be occupied during the qualifying 
 year. Moreover in construing these words we must re- 
 member that land by itself is incapable of conferring 
 the borough franchise. Its only use, as regards borough 
 
 {a) 2 Lutw. 156 ; S. 0. 8 C. B. N. S. 48. 
 11. (c) 1 Lutw. 18 ; S.C.5 M. <t 0. 
 
 (b) K. <t G. 297; S.C.7 C.B. 14. 
 
XLIV VICTORIA. 141 
 
 representation, is to eke out in certain cases the value I88OT 
 of the subject matter in respect of which the borough Sandebs 
 franchise is claimed. Except where so required, there searson. 
 seems no reason why land within a borough should not 
 be available to qualify for the county just as much as if 
 it were not so situated. In the present case the house 
 by itself confers the borough qualification, and the land 
 is not required to eke out its value. Further, if re- 
 quired, it could not be available for the purpose, because 
 " occupied therewith " must, it is submitted, include the 
 notion of being " used therewith " as matter of fact; 
 Whether the house and land were so used here, was a 
 question of fact for the Revising Barrister to determine, 
 and, he having decided on the facts, the Court would 
 not entertain the question of the propriety of his 
 decision, even if there was a doubt as to its correctness. 
 But here it is submitted that it was clearly correct. 
 The appellant's construction, if adopted, would involve 
 some strange anomalies, especially in boroughs, of 
 which several exist, having large agricultural areas 
 within their ambit. Thus a man who farmed his own 
 freehold in the agricultural part of a borough, by means 
 of a bailifif and servants, would, if he bought and 
 occupied a house within the town itself, at once deprive 
 himself of his county franchise. The policy of the 
 Legislature was clearly not, that the occupation of 
 property within a borough should in no case confer 
 upon the same individual the county as well as the 
 borough franchise. So much, at least, is proved by the 
 case of Cwpel v. Aston {a). Again, it is common know- 
 ledge that a man may have a freehold vote for a house 
 or land which he lets, and a borough vote for the house 
 he occupies. As regards the dictum of Wilde, C.J., in 
 
 {a) 2 Lutw. U3; S. C.S C. B. 1. 
 
142 MICHAELMAS SITTINGS. 
 
 •1880. delivering judgment in Capel v. Aston (a), that "the 
 Sanders words ' together with ' in the first part of the clause, 
 Seae'son. ^^^ t^6 words ' therewith ' in the latter part seem to 
 import either a local contiguity, or a similarity of 
 tenure," it is to be observed that, in the present case, 
 thei'e is neither local contiguity, nor similarity of tenure, 
 in the sense which must have been intended in that 
 passage of the Lord Chief Justice's judgment. The 
 demises of the land and house here are distinct from one 
 another in every sense, commencing at different periods, 
 and with no community of purpose in the occupa- 
 tion. The only point of similarity is, that they are 
 " under the same landlord." Collins v. Town Clerk of 
 Tewkesbury (b) is in no way adverse to the respondent's 
 argument. That case only decided that where a house 
 and land were, in fact, occupied together, it was not 
 essentially necessary that they should be in local contact. 
 It would have been impossible for the Court, who had 
 to decide that case, to have decided it differently. The 
 house and land, in respect of which the borough fran- 
 chise was there claimed, were held under one landlord 
 at an entire rent, and, upon the facts before him, the 
 Revising Barrister had decided that they formed but 
 one occupation. The dictum attributed in that case to 
 Maule, J., was quite unnecessary for the purposes of 
 the decision. 
 
 Merewether, Q.O., replied, citing Bavis on Registra- 
 tion, 2nd ed., pp. 29, 30, and Rogers on Elections, 
 p. 71, as both supporting his contention that the words 
 " occupied therewith " in sec. 27 refer to time only ; and 
 insisting that, having regard to the similarity of 
 language in ss. 25 and 27, the meaning must be the 
 same in both sections. 
 
 (a) 2 Lutw. 166 ; S. C. 8 0. B. 11. (J) 2 Litiw. 219. 
 
XLIV VICTORIA. 143 
 
 Grove, J. I am of opinion that the decision of the 1880. 
 Revising Barrister was correct. The facts of the case, Sanders 
 stated shortly, are as follows : a person, claiming a vote seak'son. 
 for the county, occupied a house within the borough of 
 Peterborough, in respect of which he enjoyed the 
 borough franchise. He also occupied under the same 
 landlord, but not under the same taking, certain land 
 within the borough, the respective takings overlapping 
 one another in point of time, and in that sense being 
 contemporaneous. The land was at a distance from the. 
 house — ^more than a mile apart from it — and there was 
 no evidence whatever of any union between the house 
 and land either by user, local contiguity, or otherwise, 
 except the circumstance that the house and land were 
 held under the same landlord, and in the sense which I 
 have already stated, contemporaneously. The question 
 for our decision is, whether this occupation of house 
 and land under the same landlord excludes the re- 
 spondent from the county franchise, notwithstanding 
 that in all other respects the occupation of the land was 
 distinct from that of the house. I am of opinion that 
 it does not. The question depends on the intention 
 with which the Legislature has used the words " to- 
 gether with " and " therewith " in ss. 25 and 27 of 
 the Reform Act. As to this it is to be observed that 
 sec. 25 uses both expressions, and that it connects them 
 in a way which shows they must have the same mean- 
 ing. I am of opinion that they must have the same 
 meaning in both the sections. Then, what is it that 
 they mean ? Have they reference to local contiguity, 
 or, as the appellant contends, to time, or are they used, 
 in a more general and popular sense, as referring to a 
 user of the qualifying premises together as part of one 
 occupation. I think that the last is the true meaning. 
 
144 MICHAELMAS SITTINGS. 
 
 1880. I do not pretend to give an exhaustive definition of the 
 Sandees words, but I think that they cannot be satisfied by the 
 SEABsoif. consideration of time alone. Irrespectively of those words, 
 it is essential that during a period of twelve calendar 
 months the qualifying premises should be contempor- 
 aneously occupied, and consequently for that purpose 
 the words are not required. Again, irrespectively of 
 those words, the occupation must be " under the same 
 landlord," so that that alone cannot be their meaning. 
 Although, therefore, these meanings are included in the 
 words, it would seem that we do not thus exhaust their 
 meaning, but that it must be in some respects more ex- 
 tensive. What, then, was the intention of sec. 27 ? I 
 think its intention was, to enable a man to acquire the 
 borough franchise by the occupation of a house of the 
 yearly value of £10, or, if the yearly value of the house 
 were below £10, that he might resort to the land 
 occupied with it, in order to make up the value ; the 
 land not being capable by itself of conferring the fran- 
 chise, but being allowed to be used as supplementary 
 and ancillary, in order to make up the value, when in- 
 sufiicient without it. But the proposition contended 
 for by the appellant — viz., that if land within the con- 
 fines of a borough be occupied at the same time and 
 under the same landlord with a house, then, no matter 
 what the extent of the land, or how distinct the land 
 from the house in the circumstances of its tenure and 
 occupation, the vote for the county is necessarily ousted 
 — appears to me neither fair nor reasonable, and, apart 
 from authority, I should have little or no hesitation in 
 saying that it could not be correct. 
 
 We were pressed, however, with the cases of Collins 
 
 V. Thomas (a), and Gafel v. Aston Q>). In Collins v. 
 
 (a) 12 C. B. 639 ; S.C.i iMw. 219. (5) 8C.B.\;S. C. 2 iMw, 143. 
 
XLIV VICTORIA. 145 
 
 Thomas (a), the marginal note is as follows : " A party 1880. 
 who occupies a house, and a garden not immediately ad- sandeks 
 joining the house, but both occupied by him as tenant searson. 
 under the same landlord, and at one entire rent exceed- 
 ing £10 per annuTTh, is entitled under the 2 Will. 4, 
 0. 45, s. 27, to be registered in respect thereof." The 
 question there evidently was, whether, in order to confer 
 the borough franchise, it was' absolutely necessary that 
 the land (in that case a garden) should be in immediate 
 local contiguity with the house. The house and garden 
 were taken of the same landlord at an entire rent, a 
 garden being allotted to each tenant in the street as a 
 part of his tenancy. The house and garden were not more 
 than forty yards apart in a direct line, and to get from the 
 house to the garden a person had to go sixty yards along 
 one public road, and then forty yards along another. And 
 the only question in the case was whether this interval 
 of space prevented the land from being occupied with 
 the house. The Eevising Barrister had decided that it 
 did not, and the Court affirmed his decision. The 
 point was pressed upon us, quite legitimately, by Mr. 
 Merewether, that during the argument of that case Mr. 
 Justice Maule is reported to have said (6), "A man 
 may have a quahiication consisting of a counting-house 
 five stories high, and a garden in another part of the 
 borough, if both are held under the same lan3lord." In 
 speaking of a counting house five stories high Mr. 
 Justice Maule does not appear to me to have had in his 
 mind any question of value, but merely to have meant 
 that there was no impossibility, as regards the borough 
 franchise, in the combination of such a counting-house 
 with a garden, although it was not the sort" of building 
 to which one would expect to find a garden attached. 
 
 ■ (a) 12 O. B. 639^; S. C. 2 Lutw. 219. (6) 12 0. B. 641. 
 
146 MICHAELMAS SITTINGS. 
 
 1880. But, at all events, that remark formed no part of the 
 Sandees judgment. It does not appear to me to have amounted 
 Sbae'son. ^^^^ *° ^^ obiter dictum, but to have been just one of 
 those remarks which are frequently made in the course 
 of an argument, in order to afford counsel an oppor- 
 tunity of answering them. The only decision in the 
 case was, that the house and garden, being both held 
 under the same tenure as part of one occupation, the 
 two were occupied together so as to confer the borough 
 franchise, although they did not actually touch. Here^ 
 on the other hand, the findings of the Revising Barrister 
 show the occupation of the house to be entirely distinct 
 from that of the land, although both are held under the 
 same landlord. The other case — Capel v. Aston (a) — 
 has no bearing on the point before us. The question 
 there raised was, whether, where a person occupied, 
 within the same borough, land as a freeholder and a 
 house as tenant, the land must necessarily be joined 
 with the house to form his borough qualification, and 
 so to deprive him of a county vote in respect of 
 the land. The Court decided that they could not be 
 joined together for either purpose, the two qualifications 
 being distinct in their character, and I can see nothing 
 in that case at all opposed to our present decision. The 
 case of Wehb v. Overseers of Aston near Birming- 
 ham (V), to which I referred during the argument, also 
 appears to me, on consideration, beside the present point, 
 except as answering the contention that a man cannot 
 have a county and borough vote at the same time in 
 respect of any property lying within the limits of a 
 borough. 
 
 The question comes back then to the meaning of the 
 
 words " together with," and I am of opinion that they 
 
 (a) 2 Lvivi. lis ; S.O.S C. B. 1. (6) 1 Lvtw. U ; S. C.5 M. di G.U. 
 
XLIV VICTORIA. 147 
 
 must mean something more than concurrence in point 1880. 
 of time under the same landlord. The Revising Bar- Sanders 
 rister has decided upon the question of fact that in the gEAHsoif. 
 present case the occupation was distinct, and I am of 
 opinion that, in doing so, he has come to a correct 
 conclusion. 
 
 LiNDLEY, J. I am of the same opinion. The ques- 
 tion turns on sec. 25 of the Reform Act, read in 
 connection with sec. 27, and the only difficulty in the 
 case is to ascertain the true construction of the words 
 "occupied together with" and "occupied therewith," 
 in those sections. Now the first thing to find out, if 
 possible, is the object of an enactment, and I think that 
 it was the intention of the Legislature here that, if the 
 value of the land could be added to that of the house 
 so as to give a vote for the borough, it should not also 
 confer a vote for the county. Suppose then that a case 
 arises in which it becomes necessary to the acquisition 
 of the borough franchise to enhance the value of the 
 qualification by the addition of land, then I think one 
 has to consider whether the land and the house together 
 are, for the purposes of the enjoyment of the occupancy, 
 worth more together than the mere value of the house 
 plus the value of the land. If, as in the present 
 case, the land is not required for the enjoyment of 
 the house, is not used with it at aU, and has, in fact, 
 nothing to do with it, then I think it cannot be said 
 to be " occupied therewith " within the meaning of 
 these sections. 
 
 Mr. Merewether contends, however, that this decision 
 will be inconsistent with decided cases, and that the 
 words " occupied therewith " have been held to refer 
 to time only, and to mean " occupied at the sapie 
 
148 MICHAELMAS SITTINGS. 
 
 1880. -time;" but I can find no case where that has been 
 Sandebs decided. In Collins v. Thomas (a), the house and land 
 Seabsok. ■were occupied under one lease from the same landlord 
 at an entire rent, and for the same purpose, and 
 although physically separated from one another by a 
 road, they were in every sense " occupied together." 
 Mr. Merewether also cited Capell v. Aston (b), to sup- 
 port the proposition that, if the house and road can be 
 joined under sec. 27 for the purpose of conferring the 
 franchise for the borough, the land cannot also be used 
 to confer it for the county. But the answer which I 
 give to that argument is, that the land and house 
 cannot in the present case be joined together for either 
 purpose. 
 
 Lopes, J. I also think the Revising Barrister's deci- 
 sion should be affirmed. Tlie appellant contends that 
 if A. rents of B. a house in one part of the borough, and 
 land perfectly distinct in another part, the one sufficient 
 to confer a vote for the borough, the other for the 
 county, A. cannot be registered as a voter for the 
 county, but only for tbe borough. I am of opinion that 
 sees. 25 and 27 cannot be interpreted as having any such 
 meaning. It is true that under sec. 25 a voter is pro- 
 hibited from utilising his borough qualification, or any 
 land which forms part of it, for the purpose of acquiring 
 a county vote, but I cannot think in a case where he rents 
 two entirely distinct tenements, one of which is sufficient 
 to confer the county franchise, and the other that for 
 the borough, that, because he rents both tenements 
 under the same landlord, he is therefore restricted to 
 the vote for the borough. 
 
 (o) 12 0. B. 639 ; S. £7. 2 Lutw. (5) 2 Lutv). 143 ; S.C.i C.B.I. 
 219. 
 
XLIV VICTORIA. 149 
 
 Decision affirmed. 1880, 
 
 Solicitors — For Appellant, Clarice, Rawlins, & v. 
 
 Clarke, agents for Percival & Son, 
 Peterborough. 
 For Respondent^ Hensman & Nicfvol- 
 son, agents for J, Heygate, 
 Wellingborough. 
 
 Seabson. 
 
160 MICHAELMAS SITTINGS. 
 
 Sanders, Appellant ; Smith, Eespondent. 
 
 1880. THE respondent claimed to have his name inserted on 
 ""■ ■ the list ofvoters for the Northern Division of the county of 
 
 eoiintyfran- ^ Norihampton in respect of the following qualification : 
 ^^^f°T.^v^°^ It was proved that the claimant had been the owner 
 
 of Duilding -t^ 
 
 land which he in fee simple since the 28th May, 1877, of a piece of 
 
 owned in fee, 
 
 and occupied freehold land in Padholm Road, Peterborough, within 
 
 temporarily as i/.-r>7 
 
 garden ground, the Dorough 01 Peterborough, the yearly value of which 
 parliamentary exceeded the sum of £2. The land formed part of an 
 He'alfo owned estate sold in building plots ; there is no building on the 
 cupiedThonse ^^^- '^^® claimant was, and had for some time prior 
 withm the ^q ^}^q purchase of the piece of land been, the owner in 
 
 Borough, amile '■ '■ 
 
 distant from fee simple and the occupier of a freehold house in the 
 
 the land. ^ ^ 
 
 The Revis- borough of Peterborough, which before 1877 conferred, 
 
 ing Barrister i •^^ n i • i • i p ■ 
 
 having allowed and Still coniers, upon him the right of voting in an 
 the ground election for members of Parliament for the borough. 
 WM no*"ooou- 'T'he land in Padholm Road has, since the purchase, 
 wTth'^The^*"^ been occupied by the claimant temporarily as garden 
 house within ground, and is one mile distant from the house. 
 
 sec. 24 of 2 
 
 "Will. 4, 0. 45, The appellant duly objected to the name of the re- 
 
 the Court, on 
 
 appeal, _ spondent being retained on the list of voters for the 
 
 affirmed hia . pti.t i • ■, .■-,-.-.. 
 
 decision. parish of Peterborough, m the said Division of the 
 
 county of Northampton, on the ground that the land 
 was occupied together with the house, within the 
 meaning of sec. 24 of 2 Will. 4, c. 45, and their occupa- 
 tion conferred upon him the right of voting for the 
 
XLIV VICTORIA. 151 
 
 borough. In answer to the objection it was urged that 1880. 
 the land was not occupied with the house within the Sandbbs 
 
 V, 
 
 meaning of the section, but that the occupation of the Smith. 
 land was distinct from the occupation of the house. 
 
 The Eevising Barrister decided that the land was not 
 occupied with the house within the meaning of the 
 section, and that the voter had the right to have his 
 name inserted in the list of voters for the said division 
 of the county in respect of the qualification for which 
 he claimed. 
 
 Merewether, for the appellant, admitted that this 
 case was not distinguishable in principle from Sanders 
 V. Searson (a). 
 
 Hensman, for the respondent, was not called upon. 
 
 Per Cubiam. The only difference between this case 
 and Sanders v. Searson is, that this appears an d 
 fortiori case. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Clarke, Mawlins, & 
 Clarke, agents for Percival & Son, 
 Peterborov,gh. 
 For Kespondent, Hensman & Nichol- 
 son, agents for J. Heygate, 
 WeHUngborough. 
 
 (a) Ante, p. 135. 
 
 TOL I. 
 
152 MICHAELMAS SITTINGS. 
 
 In re Sale. 
 
 1880. A RULE had been obtained, at chambers, under 41 & 
 42 Vict. c. 26, s. 37, calling on the Eevising Barrister for 
 
 Dec. 20. 
 
 who h™Teeu the N"orthern Division of the county of Warwick to 
 tS?*]Sf of ""^ show cause, why he should not state a case on appeal 
 voters must ^^^ j^jg decision in disallowing the claim of John Sale 
 
 prove *to the " 
 
 satisfaction of ^q ^q inserted in the list of £12 rated occupiers, entitled 
 
 the Eevising 
 
 Barrister" to vote for the Northern Division of the county of 
 that he gave 
 
 due notice of Warwick. 
 
 inserted. The rule was obtained upon the affidavit of George 
 
 where™ cWm, Ifuttall, who described himself as a registration agent, 
 
 pSrbe ' and deposed as foUows :- 
 
 signed by the " 1. I have during the last and present year attended 
 
 claimant, had ° r j 
 
 been accepted tj^g registration courts of the Northern Division of the 
 
 and published 
 
 by the over- county of Warwick, as agent for the liberal party. 
 
 Beers, and in 
 
 the Court of " 2. John Sale, now residing at No. 5, Berner Street in 
 
 unopposed,but the hamlet of Aston Manor in the parish of Aston in 
 
 Barrist™'"^ the Said division, has been until recently for many years 
 
 fied"^trthe" qualified to be, and has, in fact, been on the list of 
 
 P™?f "* *.^® persons entitled to vote in the election of a knight or 
 
 was not satis- kiiights of the shire for the said Northern Division of 
 
 fied that the 
 
 claim had the Said county of Warwick as a £12 rated occupier, his 
 
 emanated from ,.„ . , , , 
 
 the claimant, qualmcation to vote being a house. No. 91 in Wills 
 
 disallowedft,"^ Street, in the said hamlet and parish ; but, in con- 
 refusing to 
 
 state a case ; Held that his refusal was justified, inasmuch as he was clearly not 
 bound to allow the claim, even if he had a discretion which could have authorised its 
 reception. 
 
XLIV VICTORIA. 
 
 153 
 
 sequence, as I believe, of his recent removal from the 1880. 
 said house to No, 5, Berner Street aforesaid, the over- /» re Sale. 
 seers of the said parish of Aston omitted his name 
 from the list of £12 rated occupiers published by them 
 for the present year. 
 
 "3. Notice of claim to have the name of the said 
 John Sale inserted in the said list of £12 rated occu- 
 piers was duly sent to the said overseers." 
 
 The notice of claim was made an exhibit to the 
 affidavit, and was as follows : — 
 
 Notice of claim by person omitted from the list of £12 rated occupiers 
 made out by the overseers. 
 To the Overseers of the Parish of (or Township of) Aston (North 
 
 Warwickshire) : — 
 
 I hereby give you notice that I claim to have my name inserted in 
 the list made by you of persons entitled to vote in the election of a 
 Imight (or knights) of the shire for the Northern Division of the county 
 of Warwick in respect of the occupation of lands or tenements of 
 the rateable value of £12 or upwards within the said parish and county, 
 and that the particulars of my qualification are stated in the columns 
 below. 
 
 Dated the 18th day of August, 1880. 
 
 (Signed) John Sale. 
 
 Christiaji name 
 
 and surname of 
 
 the claimant at 
 
 full length. 
 
 Place of 
 abode. 
 
 Nature of 
 qualification. 
 
 Street, lane, or other 
 
 place in the pariah 
 
 (or township) where the 
 
 property is situate, 
 
 and number 
 
 (if any). 
 
 Sale, John. 
 
 5, Berner Street, 
 Alton. 
 
 Houses in 
 succession. 
 
 91, WHU Street, and 
 5, £emer Street. 
 
 " The name of the said John Sale was included in 
 the £12 list of claims published by the said overseers, 
 and a print of the said list is now produced and shown 
 to me, marked with the letter B. No objection to the 
 name of the said John Sale appearing on the said list 
 was made by the said overseers or by any other person. 
 
 " 4. On the 23rd day of October last, as well as on 
 
 N 2 
 
154 MICHAELMAS SITTINGS. 
 
 1880. several earlier days, a Court was held for the revision of 
 In re Sale, the lists of voters for the hamlet of Aston Manor, 
 which is situate in the said Northern Division of the 
 county of Wiwwicky before John James Heath Saint, 
 the Revising Barrister for the said Division. I was 
 present at the said Court. At- such Co'art the qualifica- 
 tion of the said John Sale, as expressed in his said 
 notice of claim, was proved to the satisfaction of the 
 said Revising Barrister ; and thereupon it was contended 
 on behalf of the said John Sale, that his claim ought 
 to be allowed, and his name retained in the list and on 
 the register of voters. The said John Sale was not pre- 
 sent. The said Revising Barrister then objected, that 
 no evidence had been laid before him that the said 
 John Sale had, either signed a notice of claim himself, 
 or authorised any other person to sign one on his behalf; 
 and thereupon he struck out the name of the said 
 John Sale, and disallowed his claim, holding that the 
 claim of the said John Sale could not be allowed, on 
 the ground that persons who claim in consequence of 
 the omission of their names from the list of £12 rated 
 occupiers must, notwithstanding that their claims are 
 published by the overseers, prove to the satisfaction of 
 the Revising Barrister, not only their qualification to 
 vote, but also that they gave due notice of claim. 
 
 " 5. A notice in writing on behalf of the said John 
 Sale that he was desirous to appeal against the said 
 decision was given on his behalf to the said Revising 
 Barrister on the said 28rd day of October, but he on 
 the same day refused to state a case for the opinion of 
 the Superior Court." 
 
 Lawrance, Q.C. and F. J. Coltman showed cause. 
 The Revising Barrister acted rightly in refusing to state 
 
XLIV VICTORU. 155 
 
 a case, inasmuch as no legal question on which a case 1880. 
 could be stated, arose before him. If any question at in re Sale. 
 all arose, it was purely one of fact for his own deter- 
 mination, viz. whether the notice of claim had emanated 
 from the person by whom it purported to be signed. 
 The Revising Barrister was clearly entitled, and, as is 
 submitted, bound, to call for legal proof, sufficient to 
 satisfy him, that it had done so. It is sufficient, how- 
 ever, for the present argument, that the Revising Barrister 
 was entitled to call for such proof. That he was so, 
 seems clear from the language of ss. 37 and 38 of 6 Vict. 
 c. 18, since one or other of those sections necessarily 
 governs the present case. Which of the two sections 
 applies need not be considered too closely, since both 
 equally require proof, to the satisfaction of the Revising 
 Barrister, that the claimant has given due notice of 
 his claim. It is not suggested by the affidavit, on which 
 the present rule was obtained, that any such proof was 
 adduced in the Court of the Revising Barrister. 
 
 On reading sec. 40 it will be apparent that the present 
 case is not governed by that section, but must be dealt 
 with either under sec. 37 or sec. 38. But before advert- 
 ing to sec. 40, it is desirable to call attention to some 
 other sections. The list of £12 rated occupiers in 
 counties is made out by overseers under 30 & 31 Vict. 
 c. 102, s. 30, in the same manner as overseers' lists of 
 borough voters are made out under sec. 13 of 6 & 7 
 Vict. c. 18. Claims to be on the list of £12 rated occu- 
 piers are made out under sec. 15 of 6 & 7 Vict. c. 18, 
 which by express legislation (a) is extended so as to 
 apply to that list. These claims must be sent in to 
 the overseers on or before the 25th of August, and pub- 
 lished by them (see sec. 18) on or before the 1st of 
 
 (a) 31 & 32 Vict. u. 58, ». 17. 
 
156 MICHAELMAS SITTINGS. 
 
 1880. September. But the list, or catalogue, as it has been 
 /» re Sale, sometimes termed, of these claimants, must not be 
 confounded with the list of voters, which the statute 
 requires to be published, at latest, on the 1st of August. 
 It is only to persons on the list of voters that the Act 
 provides machinery for giving written notices of objec- 
 tion, and the 20th of August is the latest day on which 
 the Act allows these written notices of objection to be 
 given. Referring then to sec. 40, we find its language 
 adapted to the case of persons on the list of voters, to 
 whom written notices of objection can be given, 
 but inapplicable to persons on the list of claim- 
 ants, to whom they cannot. Under sec. 40 the vote 
 stands, if the qualification be good on its face, unless 
 objected to. If objected to, the onus prohandi is on 
 the objector, who must prove, as a preliminary to the 
 voter being called upon, that he gave the requisite 
 notices of objection, and will then put the voter to 
 proof of his title to vote, though not to proof of his 
 notice of claim. Bavies v. Hopkins (a). But, on the 
 other hand, a person on the so called list of claimants, 
 who is, in fact, a person claiming to he inserted in the 
 list of voters, must in all cases prove two things, first, 
 his notice of claim, and, secondly, his title to vote, and 
 that, whether his claim be opposed, or not, in the Court 
 of Revision. The application to the Revising Barrister 
 for leave to oppose the claim is made in order to enable 
 the objector to be heard in opposition, not for the pur- 
 pose of putting the claimant to the proof of his claim. 
 See per Bovill, C.J. ; Bennett v. Brumfit, Alderson's 
 case (&). The character of a list of claimants receives 
 apt illustration in the language of Lord Coleridge in 
 
 (a) K. A 0. 118 iS.C.Z 0. B. (h) 1 Bopw. i- Colt. 85 ■ S C 
 
 N. S. 376. L. R. 4 C. P. 411. 
 
XLIV VICTORIA. 157 
 
 Pickard v. Baylis (a). Speaking of such a list, his 1880. 
 Lordship said (a) : " The catalogue of new claims, in re Sale. 
 though published by the overseers, is not a list in 
 which any one is retained, or from which any one is 
 expunged, but merely a catalogue from which the lists 
 may be supplemented." The rule in this case appears 
 to have been moved under a misconceived notion that 
 the principle of Davies v. Hopkins (b) applied to the 
 present case. But both in Davies v. Hopkins (b), and 
 Leonard v. AUoways (c), which followed it, the judg- 
 ments were expressly founded on the distinction, which 
 the Court relied on, between the language of sec. 40, 
 which only requires proof of the title to vote, and that 
 of sec. 37, which requires proof not only of the title to 
 vote, but also of the notice of claim. It is true that 
 those cases were cases of claimants, but claimants to be 
 on the property list. The list of such claimants is by 
 express legislation (see 6 & 7 Vict. c. 18, s. 6) made 
 part of the list of voters, and as part of such list, is 
 published on the Ist August, with the accompanying 
 liability of those upon it to be objected to by the 
 ordinary written notices. 
 
 Mellor, Q.C. and Crompton in support of the rule. 
 The objection, which the Revising Barrister has taken 
 to the applicant's claim, raises a question of great 
 practical importance. The practice, if not universal, 
 has at all events, it is believed, been very generally 
 adopted in Courts of Revision, of admitting these 
 claims without further proof, where the names of the 
 claimants have been included in the lists made by the 
 overseers, and duly published. That, it is submitted, is 
 
 (a) Ante, p. 108 -.L.R.h C. P. D. N. S. 376. 
 241. (c) 2 Hopw. <fe Cott. 411. 
 
 (6) K.A 0. 118; S. aZ C. B. 
 
158 MICHAELMAS SITTINGS. 
 
 1880. what the Eevising Barrister ought to have done here; 
 In re Sale, or, if not, he ought, at all events, to have stated a case, 
 that the correct mode of procedure might be authorita- 
 tively ascertained. 
 
 It is material to consider how the question has arisen. 
 The voter's claim was unopposed in the Court of Re- 
 vision, and in regard to his qualification the Revising 
 Barrister was satisfied that it was valid. His only 
 difficulty was, as to the absence of proof before him, 
 as he thought, that the signature to the notice of 
 claim had the authority of the claimant. It is to be 
 observed, in the first place, that the 6 & 7 Vict. c. 18, 
 s. 16, contains no express direction that the claim shall 
 be signed, though, in the form to which it refers (No. 6 
 sched. B), the words " (Signed) J. D." no doubt occur 
 at the foot of the form. But, at all events, the object 
 of the notice of claim is merely for the satisfaction of the 
 overseers, who, before publishing the lists of claimants, 
 have to exercise a discretion in satisfying themselves 
 that there has been due notice of claim. When they 
 have accepted the notice, and published the claimant on 
 their lists, there is an end of inquiry into the formali- 
 ties, with which the notice of claim is required to be 
 accompanied. It has been the policy of the Legislature 
 that these formalities should be dispensed with as much 
 as possible. Bavies v. Hopldns (a) illustrates the 
 principle which is in such cases applicable, and the 
 Court will be disposed to apply it with liberality. The 
 cases, in which under ss. 37 and 38 the Revising 
 Barrister has to satisfy himself that there has been due 
 notice of claim, are cases where the overseers have 
 omitted altogether to publish the claimant on their 
 lists, having either rejected the claim, in the exercise of 
 (a) K. & a. 118 -,8.0.3 0. B. N. S. 376. 
 
XLIV VIOTOMA. 159 
 
 their discretion, for some informality, or by some neglect 1880. 
 omitted to publish it. jn re Sale. 
 
 [Grove, J. The terms of ss. 37 and 38 are pointed 
 to persons omitted from the " list of persons entitled to 
 vote," or "list of voters;" you would refer them to 
 persons omitted from a " list of claimants." Do you 
 argue that the present case does not come under the 
 provisions of either sec. 37 or sec. 38?] 
 
 [Lopes, J. If so, under what section do you contend 
 that it does come ?] 
 
 Sec. 38 would seem to be more applicable to the 
 present case than sec. 37, inasmuch as the machinery 
 for the borough lists is made applicable to the list of. 
 £12 rated occupiers. But, even assuming that sec. 38 
 applies, it is submitted that if the overseers have been 
 satisfied, and have accepted the notice, that circumstance 
 ought to be sufficient to satisfy the Eevising Barrister 
 also. 
 
 Gkove, J. This appears to me a very simple case. A 
 question has been raised whether the 37th or 38th 
 section of the Registration Act (6 & 7 Vict. c. 18) is the 
 section which is applicable, but, upon referring to those 
 sections, it appears that either of them makes it neces- 
 sary for a person omitted from the list of voters to prove 
 to the satisfaction of the Revising Barrister that he has 
 given due notice of his claim to be therein inserted. 
 Now it is a datv/m of this case that the applicant was 
 a person omitted from the list of voters. Whichever, 
 therefore, of these two sections applies, the duty of the 
 Revising Barrister to insert the applicant's name in the- 
 list of voters was dependent on its being proved to the ■ 
 Revising Barrister's satisfaction that the applicant had 
 
In re Sale. 
 
 IGO MICHAELMAS SITTINGS. 
 
 1880. given due notice of his claim. Here I can see no evi- 
 dence of any such, proof before the Kevising Barrister. 
 An affidavit has been made by a person, who describes 
 himself as a registration agent, that " notice of claim to 
 have the name of the said John Sale inserted in the 
 said list of £12 rated occupiers was duly sent to the said 
 overseers," so that such a notice appears to have been 
 sent by some one, but it does not appear that it was by 
 the applicant. But before the Revising Barrister I do 
 not see that there was any evidence even tendered. It 
 is said that the Revising Barrister ought to have 
 accepted the claim, because the applicant's name was 
 published by the overseers on the list of claimants, and 
 that such publication is conclusive on any question 
 which affects the claim. The overseer does not appear 
 to have been sworn, and I doubt whether there was any 
 evidence at aU before the Revising Barrister. Upon 
 that subject, however, I should be sorry to lay down any 
 rule which might have the effect of interfering with the 
 discretion of Revising Barristers. But putting the case 
 most favourably for Mr. Mellor's argument, it amounts 
 only to this, that a question arose for the Revising 
 Barrister's discretion. I think that to grant a case 
 under such circumstances as the present would be to 
 grant it for no better reason than simply because it is 
 asked for. It is not merely because a person who is 
 discontented with the decision of a Revising Barrister 
 calls upon him to state a case, that it is obligatory on 
 the Court, under sec. 37 of 41 & 42 Vict. c. 26, to compel 
 the Revising Barrister to state one. The section leaves 
 this to the discretion of the Court. Virtually we are 
 asked here to substitute the satisfaction of the overseers 
 for the satisfaction of the Revising Barrister; or in 
 other words, to repeal an enactment, which appears to 
 
XLIV VICTORIA. 161 
 
 have been passed for very good reasons. It is true that 1880. 
 where a person's name is upon the ordinary lists, inas- /„ re Sale. 
 much as the Act has in that case provided machinery 
 for objecting to him, the onus is, in the first instance, 
 upon the objector, and it is only upon proof of the ob- 
 jection that the voter is called upon for proof, and then 
 required to prove his qualification. But where a person 
 is omitted from the ordinary lists, the Revising Barrister 
 has to proceed, although the claim is unopposed, and to 
 satisfy himself, not only of the sufficiency of the quali- 
 fication, but also that there has been due notice of the 
 claim. Here the Revising Barrister was satisfied as to 
 the qualification, but not as to the notice of claim ; and 
 to hold that, because the overseers were satisfied, he 
 must be also would, as I have already said, be to repeal 
 the enactment. 
 
 -I think that the Revising Barrister was right in re- 
 fusing to state a case, and that this rule should be 
 discharged. 
 
 Lopes, J. This application is made to us under 
 sec. 37 of 41 & 42 Yid. c. 26 to order the Revising 
 Barrister to state a case ; and if we thought that any 
 real question was involved, which ought to be raised, we 
 should, without doubt, make the rule absolute. But, 
 upon the question of ordering a case to be stated, the 
 Court has a discretion. Here I am of opinion that the 
 Revising Barrister was justified in his refusal to state a 
 case. AVTien the matter was before him in the Court of 
 Revision no evidence' was adduced that the applicant 
 had given due notice of his claim. AU that was 
 brought before the Revising Barrister was a" notice of 
 claim, which might, or might not, have been sent 
 to the overseers by the applicant, but, as to which. 
 
162 MICHAELMAS SITTINGS. 
 
 1880. there was no evidence at all by whom it had 
 /» re Sals, heen signed, or whence it had emanated. Why 
 should the Revising Barrister under these circum- 
 stances say that it was proved to his satisfaction that 
 the claimant had given due notice of his claim ? It may 
 be that a question arose for his discretion. It is said 
 that the notice of claim was sent to the overseers, 
 and having been received and published by them, it 
 must be taken that they accepted it, and that they were 
 the proper persons to judge of its sufficiency. That 
 argument however comes to this, that instead of the 
 words of the Act of Parliament " to the satisfaction of 
 such barrister " we are to substitute the words " to the 
 satisfaction of the overseers.'' But to do so would be to 
 repeal the enactment. 
 
 I am clearly of opinion that the rule should be dis- 
 charged. 
 
 Rule discharged, with costs. 
 
 Solicitors — For Applicant, Sharpe, Parkers, & Go., 
 agents for Ryland <& Co., 
 
 Birrmmghct/m. 
 For Revising Banister, S. D. Hamilton. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 QUEEN'S BENCH DIVISION 
 
 OF 
 
 THE HIGH COURT OF JUSTICE^ 
 
 UNDER STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. 0. 26, 
 
 DDKING 
 
 MICHAELMAS SITTINGS, 1881, 
 
 IN THE 
 FORTY-FIFTH YEAR OF QUEEN VICTORIA. 
 
 Bradley, Appellant ; Baylis, Respondent. 
 MoRFEE, Appellant ; Novis, Respondent. 
 KiRBY, Appellant ; Biefen, Respondent. 
 
 Bradley v. Baylis. 
 
 AT a Court held before the Revising Barrister ap- 1881. 
 pointed to revise the lists of voters in the election ^ ''^Ti^6 
 of member of Parliament for the borough of Chelsea 
 
 An occupier of 
 
 the claimant Br-adley claimed to have his name inserted a " dwelling- 
 house " within 
 SO & 31 Vict. c. 102, s. 3, and 41 & 42 Vict. c. 26, s. 6, must be one who would be 
 rateable as an occupier under 43 Miz. o. 2. 
 
 A lodger, therefore, who is not such an occupier, is not entitled to the " dwelling- 
 
164 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlby 
 
 V. 
 
 Baylis. 
 
 in the list of voters in respect of his occupation of a 
 dwelling-house in the parish of Hamrmrsmith-withm 
 the said horough. 
 
 The claimant had occupied as his residence for up- 
 wards of twelve calendar months previous to the 15th of 
 July, 1881, one unfurnished room [furnishing it, and 
 residing in it with his wife and family] (a), in a dwell- 
 ing-house situated within the parish of Hammersmith, 
 in the said borough, at a weekly rent of 3s. 6d. The 
 clear yearly value of the room if let unfurnished was 
 under £10. The room was rented by him from the 
 tenant of the entire house, who held of the owner of the 
 house at a yearly rent. [The claimant had a key of the 
 outer door] (a). The house comprised more rooms than 
 that occupied by the claimant. 
 
 Subject to the occupation aforesaid by the claimant 
 and to his right of access to and from the outer door. 
 
 (a) The words in brackets were during the argument in the Queen's 
 added by consent o£ both sides Bench Division. 
 
 house" franchise notwithstanding that as a lodger he has occupied rooms in a house 
 separately, and that sec. 5 of 41 & 42 Vict. c. 26, defines " dwelling-house " to include 
 "part of a house separately occupied as a dwelling." 
 
 Where the owner of a house, who lets unfurnished apartments, reserves a part, in 
 which he either resides himself, or has servants to look after the house for him, and 
 retains control over the staircases, passages, and outer door (together with a right of 
 interference to turn out trespassers and the like), giving the inmates merely a right of 
 ingress and egress to their apartments, the inmates, notwithstanding they have the 
 exclusive use of their apartments, a latch-key to the outer door, and a key to the 
 inner door leading to their apartments, are lodgers. 
 
 "Wbere, on the other hand, the owner lets out the whole of the apartments to inmates, 
 who occupy separately, and the owner does not reside, or exercise any control or inter- 
 ference over the house, then, although the passages and staircases be not demised, but 
 only »■ right of ingress and egress over them given to the inmates, the inmates are 
 occupying tenants, and, as such, entitled to the " dwelling-house " franchise ; nor does it 
 make any difference whether or not the landlord repairs, or whether or not he pays the 
 rates and taxes. 
 
 A. had the exclusive use of two rooms, which he took unfurnished, at a weekly rent. 
 A.'s landlord resided in all the rest of the house, but supplied no service to A.; and both 
 had keys of the outer door. Held (by the Court of Appeal, reversing the Queen's 
 Bench Division), that A. was a lodger, and, as such, not entitled to the "dwelling-house" 
 franchise. 
 
 But aliter (in both courts) where all the rooms in the house were let out, and the 
 landlord did not reside, or retain control, although the passage and staircase were not 
 demised, and the landlord repaired and paid rates and taxes. 
 
XLV VICTORIA. 165 
 
 the renter aforesaid of the entire house, who through- 1881. 
 out the qualifying year of occupation of the claimant Beadlby 
 resided on the premises, exercised, from the 15th of Baylis. 
 July, 1880, to the 15th of July, 1881, a general 
 control over the whole house (a), but rendered no 
 service either by himself, or any servant of his, to the 
 claimant. 
 
 Subject to the question whether the room so occupied 
 by the claimant was or was not a dwelling-house for 
 the purposes of the Representation of the People Act, 
 1867, he was in all other respects qualified to be inserted 
 in the occupiers' list for the borough of Chelsea for the 
 year 1881. 
 
 It was contended for the claimant that, under the 
 above mentioned circumstances, he was the separate 
 occupier of a room constituting for the purposes of the 
 Representation of the People Act, 1867, by virtue of 
 sec. 5 of the Parliamentary and Municipal Registration 
 Act, 1878, a dwelling-house, as tenant, and as such 
 entitled to be on the list of occupiers. 
 
 The Revising Barrister disallowed the claim on the 
 ground that, as the renter of the entire house resided 
 in the house during the whole of the qualifying period, 
 and exercised a general control over it, although 
 without rendering any service to the claimant, the 
 occupation of the claimant was that of a lodger, and not 
 that of an inhabitant occupier, as tenant, of a dwelling- 
 house. 
 
 If the Court should be of opinion that the Revising 
 Barrister was wrong, the list of persons claiming other- 
 wise than as "lodgers was to be amended by inserting 
 
 (d) It was admitted on the ar- this statement coald be stated 
 gument in the Queen's Bench Di- beyond what were to be gathered 
 vision that no facts in support of from the case itself. 
 
 o 2 
 
166 MICHAELMAS SITTINGS. 
 
 1881. the names and qualifications of the appellant and the 
 Bkadley other claimants. 
 
 V. 
 
 Batlib. 
 
 Bompas, Q.C. (J. F. Torr with him), for the 
 claimant. The decision of the Revising Barrister was 
 wrong. The question arises under sec. 5 of 41 & 42 
 Vict. c. 26, which contains a definition of the word 
 " dwelling-house " in substitution for that contained in 
 sec. 61 of 30 & 31 Vict. c. 102. Eeading this substi- 
 tuted definition into sec. 3 of 30 & 31 Vict. c. 102, the 
 appellant, being the occupier of " part of a house " 
 " separately occupied as a dwelling," was, within sec. 3 
 of 30 & 31 Vict. c. 102, the occupier of a " dwelling- 
 house." The occupier of part of a house does not the 
 less occupy as tenant because the landlord resides on 
 the premises. It is true that in some of the older 
 cases, arising under sec. 27 of the Reform Act (2 Will. 4, 
 c. 45), that circumstance was considered material in 
 determining whether one to whom his landlord had let 
 part of a house was, or was not, entitled to vote for the 
 borough as an occupying tenant within the Reform Act. 
 But in Cook v. Humber (a) those cases were elaborately 
 reviewed, and it was pointed out that the true distinc- 
 tion between them turned, not on the character of the 
 occupation, but on the nature of the tenement, and that 
 under sec. 27 of the Reform Act part of a house, used 
 for residence, without any actual severance from the 
 residue, could not confer qualification as a "house." 
 So far, however, as the character of the occupation was 
 concerned, the judgment there pronounced shows 
 clearly, that, if that case had turned on the character 
 of the occupation instead of the nature of the tenement, 
 
 (a) K. c(' G. 413; S. 0. 11 C. B. N. S. 33. 
 
XLV VICTORIA. 167 
 
 then, notwithstanding the fact of the landlord's resi- 1881. 
 dence on the premises, the occupation would have been bbadley 
 held amply sufficient to support the claim to the bat'lis. 
 franchise. In the construction of sec. 27 of the Eeform 
 Act the case of Gooh v. Humber (a) has ever since been 
 regarded as the binding authority. But then came the 
 Act of 1867, which by sec. 61 defined "dwelling-house" 
 to " include any part of a house occupied as a separate 
 dwelling, and separately rated to the relief of the poor;" 
 and thereupon the question of structural severance 
 again arose, and also the question of separate occupa- 
 tion, and both these questions were much debated in 
 the three cases of Thompson v. Ward (b), Ellis v. 
 Burch (c), and Boon v. Howard (d), and led in each 
 case to the Court being divided in opinion. Two points 
 upon which the members of the Court were there 
 divided have now, it is conceived, been conchisively 
 settled by the Act of 1878. Firstly, in regard to the 
 dwelling-house franchise introduced by the Act of 1867, 
 the necessity for structural severance of the part of the 
 house which qualifies is now, it is submitted, done 
 away with. Secondly, in regard to the same franchise, 
 the difficulty suggested by Brett, J., that, apart from 
 the question of structural severance, the joint occupation 
 or user of one part of a house would in his judgment 
 prevent the separate occupation of another part from 
 constituting a sufficient occupation to qualify, has been 
 disposed of by the express enactment that, " where an 
 occupier is entitled to the sole and exclusive use of any 
 part of a house, that part shall not be deemed to be 
 
 (a) K. & G. 413; S. 0. 11 C. B. (c) 1 Hopm. & Colt. 537 ; S. O. 
 
 N. S. 33. L. R- 6 C. P. 329. 
 
 (6) 1 Hopw. & Colt. 530 ; S. 0. (d) 2 Hofw. & Colt. 208 ; S. C. 
 
 L. R. 6 C. P. 327. L. R. 9 C. P. 277. 
 
Baths. 
 
 168 MICHAELMAS SITTINGS. 
 
 1881. occupied otherwise than separately by reason only that 
 "bradlet" the occupier is entitled to the joint use of some other 
 part." This enactment was evidently passed for the 
 purpose of removing the difficulties that had arisen 
 under the Act of 1867. It is submitted that it has 
 done so, and that the claimant's case being brought 
 within the express words of the new enactment, any 
 difficulty which he might have met with under the 
 earlier statute is now removed. 
 
 0. M. FreeTnan for the respondent. It is admitted that 
 it was the intention of the Act of 1878 to get rid of the 
 question of structural severance ; and also of the diffi- 
 culty raised by Brett, J., in Thompson v. Ward (a), and 
 the other cases cited, as to the joint user of parts of the 
 house in connexion with that part, separately occupied, 
 in respect of which the dwelling-house franchise is 
 claimed. But the question whether the character of 
 the occupation of the part separately occupied is suffi- 
 cient to confer the dwelling-house franchise has stiU in 
 each case to be decided on the facts ; and the earlier 
 decisions, in which the greatest importance was always 
 attached to the fact of the landlord's residence, appear 
 to indicate what in the majority of cases will be the 
 true solution. Upon this question the judgment of 
 Maule, J., in Toms v. Luckett (b) is in point. Maule, J., 
 there said : " Where the owner of a house takes in a 
 person to reside in a part of it, though such person has 
 the exclusive possession of the rooms appropriated to 
 him, and the uncontrolled right of ingress and egress, 
 yet, if the owner retains his character of master of the 
 house, the individual so occupying a part of it occupies 
 
 (a) 1 Eopw. & Colt. 530 ; S. C. (b) 5 0. B. 38 ; S. C. 2 Lutw. 
 
 L. R. 6 0. P. 327. 31. 
 
XLV VICTORIA. 
 
 169 
 
 it as a lodger only, and not as a tenant -within the 1881. 
 meaning of the 27th section. The fact of the party Beadlby 
 having, or not having, a key of the outer door is not Baylis. 
 decisive of the question. . . . But the question 
 depends upon whether or not the owner of the house 
 resides upon the premises, retaining his quality of 
 master, and retaining to himself the general control and 
 dominion over the whole. If he does, the inmate is a 
 mere lodger." And the judgment of Bovill, C.J. (a), 
 in Thompson v. Ward is to the same effect. Phillips 
 V. Henson (b) was a case under the Lodgers' Goods 
 Protection Act, 1871 (34 & 35 Vict. c. 79); but it illus- 
 trates the matter under discussion, since in that case a 
 person who rented almost the entire house was held 
 a lodger, because the person from whom he took 
 the house resided on the premises. Here not only 
 is the landlord resident on the premises, but it is ex- 
 pressly found that he retains the general control over 
 the whole house, It is true that this is stated to be 
 subject to the appellant's occupation and to his right of 
 access to and from the outer door. But that does not 
 mean that the landlord is not entitled to enter the 
 appellant's room at reasonable times, and exercise such 
 rights as a landlord has in reference to one who is only 
 a lodger. The landlord would have a right, for example, 
 to see that the appellant's room was used in a proper 
 manner, or to interfere to prevent a disturbance taking 
 place there. That the Legislature contemplated un- 
 furnished, as well as furnished, lodgings as equally the 
 subject of the lodger franchise is manifest from the 
 language used in sec. 5 of the Act of 1878, when de- 
 fining " lodgings." If the appellant in this case be not 
 
 (o) 1 ffopv). Ji CM. 583, 584 ; (h) 3 0. P. D. 26. 
 
 S. C. L.R. 6 C. P. 360,361. 
 
170 MICHAELMAS SITTINGS. 
 
 1881. a lodger, it will be extremely difficiilt hereafter, at all 
 
 Beadley events in the case of unfurnished lodgings, to say who 
 
 Baylis. is. The burden of pointing out where the distinction 
 
 lies, is on the appellant, and it is for him to show why 
 
 the tests indicated in the older authorities are here 
 
 inapplicable. 
 
 Bompas, Q.C., in reply. The Lodgers' Goods Pro- 
 tection Act, 1871, was passed alio intuitu from Acts of 
 Parliament which relate to voting, so that upon the 
 question of the franchise Phillips v. Henson (a) cannot 
 be regarded as an authority. Moreover, Grove, J., there 
 said, "it may be that the plaintiff became both under- 
 tenant and lodger." Any person in the position of that 
 plaintiff would clearly, it is submitted, be entitled to the 
 dwelling-house franchise. That the dwelling-house and 
 lodger franchise overlap in some cases seems probable. 
 For the dwelling-house franchise occupation and rate- 
 ability are no doubt necessary; while for the lodger 
 franchise there must be occupation, and a certain value 
 in the lodgings. But the scope of the Act of 1867 was 
 to enlarge the dwelling-house franchise, and, by con- 
 ferring it in certain cases on the occupiers of parts of 
 houses, it has created a class who are both householders 
 and lodgers. The definition given of a lodger by Bovill, 
 C.J., in Thompson v. Ward (h), is founded to a great 
 extent on the assumption that the landlord retains both 
 the general control of the whole house, and also the 
 control over the outer door. Here the facts, it is sub- 
 mitted, are otherwise. As regards the outer door, the 
 appellant has a key of it ; and as regards the general 
 
 (a) 3 0. P. D. 28. S. C. L. R. 6 C. P. 360, 361. 
 
 (5) 1 Hopw. <t Cdt. 683, 584; 
 
XLV VICTORIA. 
 
 171 
 
 control of the landlord, upon the facts stated it does not 
 extend to the room which the appellant occupies. It is 
 true that in Toms v. Luclcett (a) Maule, J., seems to 
 have attached importance to the fact of the landlord 
 being there non-resident, as having a bearing on the 
 character of the tenant's occupation. But that case 
 underwent discussion in Gook v. Humber (b), and there, 
 although the landlord was resident in the house in 
 which his tenant claimed the franchise, the Court 
 evidently considered that the tenant's occupation was 
 sufficient, and that, under these circumstances, he would 
 have been entitled to the franchise, if the thing which 
 he occupied had been structurally severed. The neces- 
 sity for structural severance being now done away with, 
 the reasoning of Cook v. Humber (h) is applicable in 
 support of the present claim. 
 
 1881. 
 
 Bbadlet 
 
 V. 
 
 Baylis. 
 
 MORFEE V. NOVIS. 
 
 AT a Court held before the Eevising Barrister 
 appointed to revise the lists of voters in the elec- 
 tion of members of Parliament for the borough of 
 Hastings, the claimant George Morfee claimed to have 
 his name inserted in the list of voters, in respect of his 
 occupation of a dwelling-house. No. 3, Waterloo Place, 
 in the parish of All Saints, within the said borough. 
 The following facts were established by the evidence : — 
 The claimant occupied two rooms on the first floor of 
 the house in respect of which he claimed the franchise, 
 
 MonrsE 
 
 V. 
 
 NOTIS. 
 
 (a) 5 O. B. 38 ; S. C. 2 Lutw. 
 
 31. 
 
 (J) K. & a. 413 ; S. a 11 O. B. 
 N. S. 33. 
 
172 MICHAELMAS SITTINGS. 
 
 1881. using one as a bedroom, and the other as a living or 
 MoBFBE sitting-room ; in the latter room the wife of the claimant 
 Novis. cooked, and the claimant and his wife took their 
 meals. 
 
 The rooms were let to the claimant nnfurnished at 
 the weekly rent of 3s., by one Darius Cousin, who was 
 the tenant of the house, which consisted altogether of 
 six rooms, and the said Darius. Cousin resided in all 
 the rest of the house, except the two rooms so'let to the 
 claimant. 
 
 The claimant and his landlord had each a key to the 
 street, or outer, door of the house, with which each let 
 himself in or out when he pleased. 
 
 There was a wash-house attached to the house 
 which was used in common by the claimant and his 
 landlord. 
 
 It was no part of the agreement of letting that the 
 landlord should supply attendance, or render any service 
 to the claimant, nor did he do so. The wife of the 
 claimant cleaned the rooms, and did there all that she 
 and her husband required for the occupation of them. 
 
 The landlord was alone rated to the rates for the 
 relief of the poor in respect of the occupation of the 
 entire house, and he duly paid such rates. 
 
 The claimant had the exclusive use of the two rooms 
 he so rented, and he had resided in them sufficiently 
 long to entitle him in that respect to be registered, and 
 all other requisites to entitle him to be so registered 
 were duly proved, if he were an occupier of a dwelling- 
 house within the meaning of the Representation of the 
 People Act, 1867, as amended by sec. 5 of the Parlia- 
 mentary and Municipal Registration Act, 1878, by 
 reason of his occupation of the said two rooms under 
 the circumstances above stated. 
 
XLV VICTORIA. 173 
 
 The Revising Barrister was of opinion that although 1881. 
 the claimant had the exclusive use of the two rooms, Moefse 
 yet that his landlord, Darius Cousin, retained to him- nuvis. 
 self such an occupation of the entire house as would 
 constitute him, and not the claimant, the proper person 
 to bring trespass for trespass committed in any part of 
 the hoiise, including the rooms so occupied by the 
 claimant ; that the landlord was the proper person to 
 be rated as the occupier of the house ; and that, there- 
 fore, the claimant was not the occupier of a dwelling- 
 house within the meaning of the statutes, but occupied 
 the said rooms as a lodger only. 
 
 The Revising Barrister accordingly disallowed the 
 ql aim. and also the claims of thirty-three other persons 
 who claimed under like circumstances, and he consoli- 
 dated their appeals. 
 
 Biron (Gill with him), for the appellant, contended 
 that, although the Revising Barrister had only found 
 in terms that the appellant had the exclusive use of 
 his rooms, the facts stated showed that in reality he 
 had not merely the exclusive use, but the exclusive 
 occupation of them. 
 
 Hollings, for the respondent, contended that, there 
 being a joint user of the wash-house, that circumstance 
 precluded the appellant's occupation of the qualifying 
 tenement from being regarded as exclusive. He "also 
 cited Allan v. The Overseers of Liverpool (a) in support 
 of the contention that the appellant was a mere lodger, 
 and, as such, that he was neither rateable, nor capable 
 of maintaining trespass against any one who broke into 
 his rooms. 
 
 {a) L.R9Q. B. 180. 
 
174 
 
 MICHAELMAS SITTINGS. 
 
 KlRBY V. BlFFEN. 
 
 KiRBY 
 
 T. 
 BlTFEN. 
 
 1881. AT a Court held by the Revising Barrister appointed 
 to revise the lists of voters for the city of West- 
 minster, the name of the respondent George Biffen 
 appeared in the list of claimants published by the 
 overseers of the parish of St. John the Evangelist, as 
 claiming otherwise than as a lodger to have his name 
 inserted in the list of voters for the borough. 
 The claim was as follows : — 
 
 Name of claimant in full. 
 Surname being first. 
 
 Place of Abode. 
 
 Nature of 
 Qualification. 
 
 Name and Situation of 
 Qualifying Property. 
 
 Biffen, George. 
 
 28, Ponsonby 
 Terrace. 
 
 Bwelling- 
 house. 
 
 28, Ponsonhy Terrace. 
 
 The claimant had occupied for the qualifying year, 
 as tenant at a weekly rent of 7s., two rooms on the 
 first floor of No. 28, Ponsonby Terrace. Such rooms 
 were not structurally severed from the rest of the house, 
 nor separately rated, nor was the claimant's name 
 entered in the occupier's column of the rate-book, but 
 the entire house was rated in the name of the landlord, 
 and he had paid all the rates. The furniture in the 
 two rooms was the claimant's own. The house ia 
 question was an ordinary dwelling-house, containing 
 eight rooms, and was wholly let out on similar tenancies 
 to tenants — of whom the claimant was one — the land- 
 lord paying all rates and taxes, including water-rate, in 
 respect of the entirety of the premises, and also doing 
 all painting and repairs inside and out. The tenants, 
 including the claimant, had the common use of the 
 passage, staircase, street door, and conveniences of the 
 
XLV. VICTORIA. 175 
 
 house. The landlord did not reside within the house, 1881. 
 
 nor, save as aforesaid, did he, by himself or his servants, Kirbt 
 retain the control and dominion over the house or any bJfeit. 
 part of it, or render any services of any kind to the 
 tenants or any of them. He simply received the rents 
 from them. 
 
 The claimant was objected to as not being the occu- 
 pier of a " dwelling-house " within 30 & 31 Vict. c. 102, 
 and 41 & 42 Vict. c. 26, upon the following grounds : — 
 
 1. That by the words of its title the Act of 1878 did 
 not contemplate an extension of the franchise. 
 
 2. That at the time of the passing of the Act of 1867 
 local Acts were in force in the city of Westminster for 
 rating owners instead of occupiers, and that, therefore, 
 according to the case of Stamper v. The Overseers of 
 SuTtderland (a), the claimant was entitled as a lodger, 
 and not as the occupier of a dwelling-house, and should 
 have claimed accordingly. 
 
 3. That the Act of 1878 makes provision both for 
 lodgers and occupiers, and makes several further elabo- 
 rate provisions for the former. 
 
 4. That the example of a lodger's claim in the 
 schedule to the Act of 1878 (Form H. 2), which is 
 made part of the Act, is that of a lodger claimant 
 whose landlord does not reside in the same house as the 
 claimant. 
 
 5. That the part of a dwelling-house occupied by a 
 claimant must, to confer the dwelling-house franchise, 
 be a rateable hereditament, and not merely a part of a 
 rateable hereditament. 
 
 The Eevising Barrister expressed his impression that 
 the claim ought to be allowed, but reserved final 
 
 (a) L. R. S a P. 388. 
 
176 MICHAELMAS SITTINGS. 
 
 1881. judgment, and, at the request of the claimant, and with 
 KiEBY *^® 'i^^ of enabling him to establish a claim as a 
 BipTEN lodger in case he was not entitled to the dwelling-house 
 franchise (notwithstanding objection on behalf of the 
 objector), received further evidence as to the name and 
 address of the claimant's landlord, and was thus satisfied 
 that, if not the occupier of a dwelling-house within the 
 meaning of the Acts, then the claimant would have 
 been entitled as a lodger, if he had made a proper 
 lodger claim, together with a proper declaration, and 
 such claim had been duly witnessed. 
 
 It was objected to the reception of this evidence, that 
 the Kevising Barrister must first decide whether the 
 matter stated in the claimant's claim, or proved to him 
 in relation to the claimant's alleged right to be on the 
 household list, was in his judgment sufiicient to consti- 
 tute a qualification for the dwelling-house franchise, 
 and that if the Revising Barrister decided that it was 
 sufiicient, he was precluded by sub-ss. 12 and 13 of 
 sec. 28 of the Act of 1878 from hearing evidence to 
 constitute a qualification of any other nature or descrip- 
 tion, and from inserting the name in the lodger list. 
 The objection was overruled. 
 
 The claims of 196 other persons were objected to 
 upon similar grounds, their cases being in all respects 
 similar to the case of the claimant Biffen, with the 
 exception, which the Revising Barrister did not con- 
 sider material, that some of those persons occupied one 
 room only in the house in which they lived, and others 
 occupied more rooms than one in the same house, but 
 on difierent floors. 
 
 Of the above 196 persons 186 were specified in the 
 second schedule annexed to the case, together with full 
 particulars of what their claims would have been if 
 
XLV VICTORIA. 177 
 
 they had claimed as lodgers, and not as entitled to the 1881. 
 dwelling-house franchise, and in each of these cases the Kikbt 
 respective holdings were of the clear yearly value, if let biffbn. 
 unfurnished, of £10 or upwards. 
 
 The names of the remaining ten (the value of whose 
 respective holdings were not of the clear yearly value 
 of £10, if let unfurnished) were specified in the third 
 schedule. 
 
 The Revising Barrister finally decided that, regard 
 being had to the uncertainty of the law, and the difii- 
 culty in which the claimants were consequently placed 
 in ruaking their claims, the respondent and the 186 
 persons named in the second schedule ought to be 
 transferred to the lodger list, if the premises for which 
 they respectively claimed were not sufficient to qualify 
 them for the dwelling-house franchise ; but that in his 
 opinion they and also the ten persons named in the 
 third schedule were respectively entitled to the dwell- 
 ing-house franchise ; and he accordingly placed them 
 all upon the household list as being the appropriate list. 
 
 If the Court should be of opinion that the Revising 
 Barrister was wrong, then the names of the respondent 
 and the 196 other persons were to be erased from the 
 household list ; but in such case, if the Court should be 
 of opinion that such further order could properly be 
 made, the names of the respondent and the 186 other 
 persons in the second schedule were to be transferred 
 to the lodger list. 
 
 diaries, Q.C. (D. Kingsford with him). The first 
 question is whether the claimants are inhabitant occu- 
 piers of " dwelling-houses " within the definition con- 
 tained in 41 & 42 Vict. c. 26, s. 5. That definition 
 substitutes the words "separately occupied as a dwell- 
 
178 MICHAELMAS SITTINGS. 
 
 1881 
 ' ing " instead of the words " occupied as a separate 
 
 KiKBY dwelling," which were the words in sec. 61 of 30 & 31 
 BippEN. Vict. c. 102, and gets rid of the requirement of separate 
 rating. So small a verbal alteration in the language- of 
 the definition can hardly have been intended to effect 
 an important extension of the dwelling-house franchise. 
 No extension was, it is submitted, intended, beyond 
 that which would be effected by the abolition of the 
 requirement as to separate rating. The 41 & 42 Vict. 
 c. 26, is an enactment dealing primarily, at all events, 
 with registration. It is not, like 30 & 31 Vict. c. 102, 
 an Act to extend representation ; and though uninten- 
 tionally it may, no doubt, have done so, it will be a 
 strange result of a registration Act, if by a side wind 
 it has given the franchise to a lodger, irrespectively of 
 the value of his lodgings, when lodgings, in order to 
 qualify, must be of the yearly value of £10 unfurnished. 
 If that be the true construction of the Act, the result 
 will be that the lodger franchise will disappear. The 
 41 & 42 Vict. c. 26, s. 5, has a definition of "lodgings'' 
 in the same sentence as that defining " dwelling-house," 
 which shows the intention of the Legislature to keep 
 the two kinds of franchises in existence, and separate. 
 And this is further shown by the provisions in sec. 6, 
 framed with a view to the extension of the lodger 
 franchise, and by the forms in the schedule providing 
 elaborate machinery for keeping the two franchises 
 distinct. The successive occupation of lodgings in 
 different houses stiU, as formerly, confers no qualifica- 
 tion, whereas in the case of the dwelling-house franchise 
 successive occupation has always been recognized. That 
 "lodgings" may be unfurnished, as well as furnished, 
 appears, not merely from the language of sec. 4 of the 
 Act of 1867, but from the express terms of the defini- 
 
XLV VICTORIA. 179 
 
 tion of "lodgings" in sec. 5 of the Act of 1878, which 18-81. 
 defines " lodgings " to include " any apartments, or place Kiebt 
 of residence, whether furnished or unfurnished, in a biffen. 
 dwelling-house." The form of claim for a lodger (Form 
 H. in the schedule to 41 & 42 Vict. c. 26) shows that 
 the Legislature contemplated the landlord of a lodger 
 residing elsewhere than at the lodgings, for it specifies 
 Brick Street as the street where the lodgings are 
 situate, and High Street as the place of the landlord's 
 address. And sec. 8 says expressly that the schedule 
 is to " have effect as if enacted in the body " of the Act. 
 The circumstance of the landlord residing on or off the 
 premises cannot, it is submitted, be the criterion 
 of lodger or householder under the Acts relating to 
 the franchise, otherwise the anomaly pointed out by 
 Montague Smith, J., in Stamper v. Overseers of Sunder- 
 land (a) must exist, that a lodger, properly so called, is 
 not entitled to the franchise unless his lodgings, unfur- 
 nished, are of the yearlj' value of £10, while the man 
 who occupies one room in a house, wholly let out in 
 lodgings, is entitled to it, however small the value of 
 his room may be. In Lan^ v. Edwards (b) it was held 
 that a shop and parlour separately occupied, but not 
 structurally severed from the rest of the house, con- 
 stituted lodgings. It must be admitted that the 
 appellant, in order to make good his contention, must 
 rely on the necessity either of structural severance, or 
 of separate occupation of the subject-matter occupied, 
 so as to constitute it a "dwelling-house." But the 
 Court having been divided on these points under the 
 former enactment, the subject is, at all events, a fit 
 one for appeal, under 44 & 45 Vict. c. 68, s. 14, in the 
 
 {a) L. R. 3 C. P. 403. (5) 3 /;■. Rep. {C. L.) ir.n. 
 
 VOL. I. P 
 
180 MICHAELMAS SITTINGS. 
 
 1881. event of the Court being opposed to the appellant's 
 
 KiRBY contention. 
 
 BiF^PEN -^^ regards the second point, this, no doubt, only 
 
 becomes material if the Court are in the appellant's 
 favour upon the first point. Shortly, the second point 
 is, that the Revising Barrister had no jurisdiction to 
 transfer the claimant's name to the lodger list. The 
 jurisdiction claimed is under 41 & 42 Vict. c. 26, s. 28, 
 sub-s. 12; but that jurisdiction does not arise, unless 
 the Revising Barrister first decide that the claim to the 
 dwelling-house franchise is " insufficient in law to con- 
 stitute a qualification of the nature or description stated 
 or claimed " within the meaning of that section. And 
 this in the present case he has not done. 
 
 R. S. Wright for the respondent. The 41 & 42 Vict. 
 c. 26, s. 5, points to separate occupation as distinguished 
 from the occupation of a separated thing. It thus gets 
 rid of the doctrine of structural severance, and then 
 proceeds in express terms to dispose of the difficulty, 
 relied on by Brett, J., in Boon v. Howard (a), as to the 
 effect of the occupation of part of the thing occupied, 
 such as the passages, staircases, or other conveniences 
 of the house, being a joint occupation. But in order to 
 make the meaning of the Act still more free from 
 doubt, it enacts, that the new interpretation of 
 " dwelling-house '' shall be in substitution for that con- 
 tained in sec. 61 of the Act of 1867. Bearing in mind 
 the questions which had arisen, and been left unsettled, 
 in Boon v. Howard (a) as to the interpretation of 
 sec. 61 of that Act, clearer language could hardly have 
 been used to indicate the intention of the Legislature, 
 
 (ce) 2 ffopw. ct- Colt. 208 ; S. 0. L. R. 9 0. P. 111. 
 
XLV VICTORIA. 181 
 
 that the view taken in Boon v. Howard (a) by Keating 1881. 
 and Benman, J J., as to the interpretation of the word Kikbt 
 " dwelling-house " should thenceforth prevail. For the Bifpen. 
 appellant it has been contended that, if in the present 
 case the decision is for the respondent, the lodger 
 franchise will disappear. But that argument involves 
 a fallacy. It may be that to a certain extent the two 
 franchises do overlap, there being nothing to prevent it 
 in the Act which creates them. But there are many 
 cases in which a person could successfully claim the 
 lodger franchise where he could not claim as an in- 
 habitant occupier. One instance, for example, would 
 be the case of joint occupation, which is allowed in 
 the case of lodgings, but not in the case of the 
 " dwelling-house " franchise. 
 
 Then, as to the second point. The object which 41 
 & 42 Vict. c. 26, s. 28, sub-s. 12, had in view, was to 
 prevent the name of a voter from appearing upon each 
 of two separate lists. The Eevising Barrister, therefore, 
 in doing what he has done has not exceeded his juris- 
 diction. He has not altered the list under sub-s. 12 ; 
 he has merely acted provisionally, so as to place the 
 matter in such a form as to enable the Court to deal 
 with it. The judgment of the Court, wben given, will 
 stand in the place of that of the Eevising Barrister. 
 There is at present no judgment of the Revising 
 Barrister. He has not altered the register, but, on the 
 contrary, has refused to alter it. He says, in effect, to 
 the Court, ought I to have made such an alteration? 
 The Court says whether he ought, and, if it is of that 
 opinion, makes the alteration which he ought to have 
 made. 
 
 (a) 2 ZTopM). A Colt. 208 ; S. C. L. R. 9 C. P. 277. 
 
 r 2 
 
182 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 KlKBT 
 V. 
 
 BiPFEN. 
 
 Charles, Q.C., in reply. As to the last point, the 
 procedure under sec. 28, sub-s. 12, is matter for the 
 Eevising Barrister, not for the Court. As to that, sub-s. 
 13 may be referred to as well as sub-s. 12. It has been 
 suggested that the Revising Barrister acts provisionally, 
 but Jones v. Marshall (a) is an authority to show that 
 the Revising Barrister cannot give a provisional judg- 
 ment. Willes, J., there said, on it being suggested that 
 the Eevising Banister had acted provisionally, " There 
 is no section of the Act that speaks of a provisional 
 striking off. That must be done finally, subject to the 
 revision of the Court.'' 
 
 Beadley 
 
 V. 
 
 Batlis. 
 
 MORFEB 
 V. 
 
 Novis. 
 
 KiRBT 
 V. 
 
 Biffen 
 
 Denman, J. If any substantial distinction had been 
 shown to exist between these three cases, I should have 
 thought it right to take further time to consider our 
 judgment. But none has been shown, nor does it 
 appear that there is any possibility of further facts 
 being stated, so that if we remitted any of these cases to 
 the Revising Barristers, it would only cause the parties 
 unnecessary expense. 
 
 The question, then, in each of these cases, arising 
 under sec. 5 of 41 & 42 Vict. c. 26, is, whether the 
 claimants are entitled to the dwelling-house franchise 
 as inhabitant householders, by reason of an exclusive 
 occupation of rooms in a dwelling-house as their dwell- 
 ing, subject only to the exercise of such general control 
 on the part of the landlord as can be inferred from the 
 facts stated and admitted, the landlord residing in two 
 of the cases on, and in the other case off, the premises. 
 In order to dispose of the argument that weight has 
 not been given to any alleged distinction between the 
 
 (a) 1 ITopw. <i- Colt. 738. 
 
XLV VICTORIA. 
 
 183 
 
 cases, I will proceed to call attention to the material 
 statements in each. 
 
 In the first case {Bradley v. Baylis) the claimant 
 "occupied as his residence" "one unfurnished room," 
 meaning, as was admitted, a room, which he had taken 
 unfurnished, and furnished himself. In this room he 
 resided with his wife and family, renting it from the 
 tenant of the entire house. Subject to this occupation 
 by the claimant, -viz., to his residing in the room with 
 his wife and family, and using it as his dwelling, and 
 subject to his "right of access to and from the outer 
 door," that is, his absolute right to go in and out when 
 he pleased, the landlord, the renter of the entire house, 
 who resided on the premises, exercised a general control 
 over the whole house, but rendered no service to the 
 claimant, either personally or by the supply of any 
 attendance. Under the expression "general control" 
 some ambiguity arises, but when taken in connexion 
 with the other facts, and with the allegation that in all 
 other respects the claimant was qualified, I think it 
 amounts to no more than this, that the landlord could 
 go over the whole house, subject to the claimant's ex- 
 clusive right in the room which he occupied. Thus, for 
 instance, the landlord could mend the staircase, paint 
 the staircase walls and outer door, repair the roof, and 
 do all other like acts not inconsistent with the exclusive 
 right of the claimant in his room. No facts appear in 
 the case which could preclude the claimant from saying 
 that he occupied his room to the exclusion of the land- 
 lord. None were suggested. If they had been we 
 should have sent the case back to the Reviser to have 
 them found. This appears to me the correct reading of 
 the case, and, when so read, it affords in my judgment 
 sufficient materials for arriving at a decision. 
 
 1881. 
 
 Beadley 
 
 V. 
 
 Batlis. 
 
 MOBFEIE 
 
 V. 
 NOVTS. 
 KlEBT 
 
 V. 
 
 BiprEN. 
 
184 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlet 
 
 v. 
 Baylis. 
 
 MOKFEE 
 
 V. 
 
 NOVIB. 
 
 KiRBT 
 
 V. 
 
 BiFFBN. 
 
 In the second case (Morfee v. Novis) all necessary 
 facts are found. The claimant occupied two rooms, 
 which he had taken unfurnished, a sitting-room and a 
 bed-room, his landlord residing in the rest of the house. 
 The claimant's wife cooked in the sitting-room, and did 
 the ordinary household work, no service or attendance 
 being supplied by the landlord. The claimant and his 
 landlord each had a key of the outer door. A wash- 
 house, probably accessible by internal communication, 
 was used by both in common. The landlord alone was 
 rated, but the claimant had the exclusive use of his 
 rooms, and had resided sufficiently long to entitle him 
 to the franchise. 
 
 A doubt has been raised as to the statement in the 
 case that the claimant had the " exclusive use " of his 
 rooms, as being consistent with the view that he had not 
 the exclusive occupation of them . But I cannot think 
 that that was intended to be the meaning. No facts 
 are stated in support of it, and in their absence it must, 
 I think, be taken that the case was stated to raise a 
 pure question of law. The case finds that all other 
 requisites to entitle the claimant to be registered were 
 duly proved. The question was. Was he an occupier 
 within the meaning of the statutes ? The Revising 
 Barrister held that he was not, because, in the Revising 
 Barrister's judgment, the landlord retained such an 
 occupation of the house as would constitute him the 
 occupier, and not the claimant. I think that what we 
 have here to say is, whether, upon the whole facts, the 
 claimant was the occupier of a dwelling-house within 
 sec. 5 of 41 & 42 Vict. c. 26. On this point I think 
 that there are ample facts stated to enable us to come 
 to a decision, and that we ought not to send the case 
 back to the Revising Barrister, when there is no reason 
 
XLV VICTORIA. 
 
 185 
 
 to suppose that there are any further facts which could 
 give us any aid in determining it. 
 
 The third case {Kirhy v. Biffen) raised the same 
 point, and also another one of difficulty. As to the 
 point common to the three cases the facts are amply 
 stated. The claimant had occupied, as tenant, two 
 rooms, not structurally severed. The furniture was his 
 own. The house was wholly let out in similar tenancies, 
 and the landlord did the repairs. The latter circum- 
 stance, however, would not affect the tenant's right of 
 voting. The tenant had the common use of the con- 
 veniences of the house, and, save as aforesaid, the 
 landlord, who resided elsewhere, did not by himself or 
 his servants retain control over the house. Although 
 the landlord did not, as in the other two cases, reside on 
 the premises, we think that in principle this creates no 
 distinction. One argument with reference to this, 
 which was urged by Mr. Charles, was, that in Form H. 
 No. 2 in the schedule to 41 & 42 Vict. c. 26 (which is 
 the form of claim for a lodger) the name of the landlord 
 is entered as though he lived in a different street from 
 the lodger, and it was thence argued that the Legis- 
 lature had contemplated the landlord of the lodger 
 residing off the premises. In answer to an argument 
 of that description, it is enough to say that we cannot 
 conclude, on the mere supposition that the form in the 
 schedule may have assumed the landlord would reside 
 away from the premises, that the franchise is to depend 
 on whether he does so or not. 
 
 The sole question, then, common to the three cases, 
 is, whether the claimants come within sec. 5 of 41 & 42 
 Vict. c. 26. Mr. Charles contended that the title of that 
 Act showed that it related, not to representation, but 
 registration. It is true that the title professes to relate 
 
 1881. 
 
 Bbadlky 
 
 V. 
 
 Batlm. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiRBT 
 
 V. 
 
 BlPFBN. 
 
186 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 Batlis. 
 
 MOKPEE 
 
 Novis. 
 
 KiKBT 
 
 BlFFEN. 
 
 to registration, but not exclusively, for it also relates to 
 " certain- rights of voting." The title of the enactment 
 would therefore be well satisfied even if our decision 
 involved any alteration of the law as to the right of 
 voting. But it does not appear that it does so. Sec. 5 
 does not appear to be an enlarging section, but to have 
 been passed in order to put an end to certain judicial 
 doubts which had arisen in the interpretation of former 
 statutes. The words of sec. 5 are : " In and for the 
 purposes of the Representation of the People Act, 1867, 
 the term ' dwelling-house ' shall include any part of a 
 house where that part is separately occupied as a 
 dwelling." The only objection to the franchise which 
 could be urged with any hope of success was, that the 
 claimants could not be deemed occupiers within the 
 Act, because they were entitled to the joint use of some 
 other part of the house. As to this, Mr. Charles frankly 
 admitted that unless he could induce the Court to 
 review its previous decisions, he could not make good 
 his contention. What, then, is the history of previous 
 legislation on this subject ? The SO & 31 Vict. c. 102, 
 s. 61 , defined " dwelling-house " to include " any part of 
 a house occupied as a separate dwelling, and separately 
 rated." The words " occupied as a separate dwelling " 
 have received judicial construction- in three cases — 
 Thompson v. Ward (a), Ellis v. Burch (b), and Boon v. 
 Howard (c). In the last case (Boon v. Howard) (c), 
 Mr. Justice Keating delivered a judgment, in which I 
 concurred, that the occupation of premises identical 
 with those with which we have now to deal con- 
 ferred the dwelling-house franchise. Mr. Justice Brett 
 
 {a) 1 Ropw. S Colt. 530; S. C. 
 L. R. 6 C. P. 327. 
 
 (b) 1 Hofw. cfc OoU. 537 ; S. 0. 
 
 L. R. 6 C. P. 329. 
 
 (c) 2 Hopw. S Colt. 208; S. O. 
 L. R. 9 O. P. 277. 
 
XLV VICTORIA. 
 
 187 
 
 and Mr. Justice FTonyman were of opinion that the 
 franchise was not conferred; Mr. Justice Brett rely- 
 ing on the fact that the occupation of one part 
 of the house was joint, and Mr. Justice Honyman 
 on a different point which arose as to separate 
 rating. Looking at the new Act, I cannot doubt that 
 the intention of the Legislature was, not to create a new 
 franchise or enlarge the former definition, but to enact 
 that the view of the word " dwelling-house " taken by 
 my brother Keating and myself was the one which the 
 Legislature intended in future to adopt, and by a slight 
 alteration in the wording of the definition to prevent 
 the old contention from being again raised. The inten- 
 tion of the enactment was, that the wor(Js " separately 
 occupied as a dwelling " should not mean exclusive 
 occupation of everything occupied; but that it should' 
 be sufficient if the part in respect of which the franchise 
 was claimed was separately occupied as a dwelling, 
 whatever common user there might be of the staircase, 
 hall, wash-house, and other parts of the house. If any 
 doubt existed as to the meaning of those words, the 
 succeeding paragraph puts the matter beyond all doubt. 
 It enacts that, " For the purposes of any of the Acts 
 referred to in this section, where an occupier is entitled 
 to the sole and exclusive use of any part of a house, 
 that part shall not be deemed to be occupied otherwise 
 than separately by reason only that the occupier is 
 entitled to the joint use of some other part." This 
 clause appears to me to stop every gap, and to make it 
 impossible to say that the old law is at' all germane. 
 The Legislature has solved the doubt which formerly 
 existed ; and our judgment must therefore in each case 
 be in favour of those claiming the franchise. 
 
 As regards the second point, which was raised in Kirhy 
 
 1881. 
 
 Beadley 
 
 V. 
 
 Bayms. 
 
 MOEFEE 
 
 V. 
 NOVIB. 
 KlKBY 
 
 V. 
 BlITEN. 
 
188 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlet 
 
 V. 
 
 Batlis. 
 
 MOEIEB 
 V. 
 
 Novia. 
 
 KlEBT 
 
 V. 
 BlFPEN. 
 
 7. Biffen, it is unnecessary for us to give &ny decision ; 
 and although, looking at the substance of the thing, the 
 inclination of my opinion is that the Court might have 
 been able, without doing violence to language, to get 
 over the objection, I prefer upon that point to express 
 no opinion. In future, however, I think that it would 
 be better that the Revising Barrister should always 
 give a decision himself, so as to avoid the difficulty 
 which has here arisen. 
 
 Beadlkt 
 
 v. 
 Batlis. 
 
 BOWEN, J. Upon the first point I am of the same 
 opinion as my brother Denraan. 
 
 Upon the second point I entertain some doubt 
 whether the Revising Banister has adopted the practice 
 which the Legislature intended. I doubt whether it is 
 right to put names upon a lodger list which the Re- 
 vising Barrister has not first struck off from the list of 
 householders. It is not necessary, however, to decide 
 that point, and I express no opinion upon it, except 
 that I think that Revising Barristers would do well in 
 future to avoid the practice which has here been adopted. 
 
 Bradley v. Baylis 
 Morfee v. Novis . 
 Kirby v. Bifen . 
 
 Decisions reversed. 
 Decision afiSrmed. 
 
 Leave to appeal, though in the first instance refused, 
 was subsequently granted in all three cases, which 
 accordingly came on (Dec. 15) in the Court of Appeal. 
 
 Bradley v. Baylis. 
 
 Sir F. Herschell, Solicitor-General {G. M. Freeman 
 with him), for Baylis, respondent in the Court below. 
 The question in this case is, whether the claimants 
 
XLV VICTORIA. 189 
 
 are entitled to the borough franchise as the inhabitant 1881. 
 occupiers of dwelling-houses within 30 & 31 Vict. c. 102, bradlet 
 s. 3. It is submitted that they are not, their occu- baylis. 
 pation having been that of mere lodgers. Where the 
 owner, or tenant, of a house resides in the house, and 
 lets part of it, the primd facie inference, at all 
 events, is that the person to whom he lets has not 
 the status of an occupying tenant, but merely that of 
 one who lodges with his landlord. The authorities show 
 that this was the view entertained before the passing of 
 The Representation of the People Act, 1867. Pitts 
 V. Smedley (a), Wansey v. Perkins {Hill's case) (&), 
 Score v. Huggett (c). The test whether a man was a 
 lodger, or an occupying tenant, was in those cases 
 made to depend on the question of the landlord's 
 residence, that being considered the most material 
 element in determining whether the landlord retained, 
 or had parted with, the general control over the house. 
 That the fact of the landlord's residence is not con- 
 clusive is not denied. On the one hand a person may 
 be an occupying tenant, although his landlord resides 
 on the premises, and on the other he may be a lodger, 
 although his landlord is non-resident. Take for in- 
 stance the case of a landlord having two houses, which 
 he lets in precisely the same way in lodgings. He 
 resides in one; in the other he keeps one or more 
 servants : the inmates to whom he lets would in both 
 cases be lodgers. But although the inference de- 
 ducible from the landlord's residence as to the status of 
 such inmates is not conclusive, it is one which prvmd 
 facie, as is submitted, it is most reasonable should be 
 
 (a) 1 lAitw. 196 ; S.a 7 M. ^ G. 151. 
 G. 85. (c) 1 Lutw. 198 ; S. C.I M. <Si 
 
 (6) 1 iMw. 252 ; S.C.I M.Sr G. 95. 
 
190 MICHAELMAS SITTINGS. 
 
 1881. acted on. It is on this view undoubtedly that overseers 
 Bkadley have been accustomed to act in making out their lists 
 Batus. a,nd ratebooks. If the landlord resides upon the pre- 
 mises, that circumstance is taken by the overseers as 
 sufficient primd facie evidence that he is the occupier, 
 and thereupon they abstain from further inquiry. But 
 if the view which has been adopted by the Court below 
 be correct, then hereafter, whether the landlord be 
 resident or not, the overseers must in each case institute 
 an inquiry into the status of every occupier of the 
 dwelling, otherwise they will subject themselves to a 
 liability to penalties. This course, if it has to be pur- 
 sued, will undoubtedly, in large constituencies, entail 
 an enormous increase in the duties of the overseers. 
 TJiat the question is one of great practical importance 
 becomes apparent when it is remembered that, whereas 
 the Act of 1867 (30 & 31 Vict. c. 102), when conferring 
 the lodger franchise, restricted it to lodgings of the 
 yearly value of £10, unfurnished, the same Act, when 
 conferring the new dwelling-house franchise, imposed 
 no limitation whatever as to the value of the tenement. 
 This of itself affords strong ground for the presumption 
 that it was the intention of the Legislature to keep 
 these two franchises wholly distinct. But the strongest 
 proof of this is to be found in the rating conditions 
 attached by the Act of 1867 to the acquisition of the 
 dwelling-house franchise. These conditions make it 
 clear that under the Act of 1867, the occupation of a 
 dwelling-house capable, as such, of conferring a qualifica- 
 tion, whatever else it may have been, must have been 
 a rateable occupation, whereas the occupation of a 
 lodger was never regarded by the law as rateable 
 (Allan V. The Overseers of Liverpool) (a). It is true 
 
 {a) L. R.9 Q. B. 180. 
 
XLV VICTORIA. 191 
 
 that the effect of the rating conditions in sec. 3 of 1881. 
 30 & 31 Vict c. 102, was considerably modified by beadlet 
 sec. 19 of 32 & 33 Vict. c. 41. But although that Act B^^'j^^g 
 modified the rating conditions contained in sec. 3 of the 
 earlier Act, it in no way affected the character of the 
 occupation which under the earlier Act was essential to 
 the dwelling-house franchise. The character of that 
 occupation necessarily remained as before, viz., one that 
 would have been rateable under the statute of Eliza- 
 beth ; and this constituted a broad line of demarcation 
 between the case of the occupier of a dwelling-house 
 and that of a lodger. The next thing to be shown is, 
 that this line of demarcation has been in no way inter- 
 fered with by the amending Act of 1878 (41 & 42 Vict. 
 c. 26). It is true that the Act of 1878 contains a new 
 definition of the term " dwelling-house " as applied to 
 part of a house, but the reason for this new definition 
 is to be found in the conflict of judicial opinion which 
 had arisen as to the meaning of the same term, as 
 defined in the Act of 1867. Before, however, citing the 
 decisions on the Act of 1867, it is necessary to call to 
 mind that, prior to the passing of that Act, it had, in 
 Cook V. Humber (a), been judicially settled that part of 
 a house could not constitute a house so as to confer a 
 qualification, unless the part, for which the vote was 
 claimed, was structurally severed from the rest of the 
 house. Sec. 3 of the Act of 1867 for the first time 
 conferred a dwelling-house franchise irrespective of the 
 value of the tenement ; and sec. 61 defined " dwelling- 
 house " to include " part of a house, occupied as a sepa- 
 rate dwelling, and separately rated to the relief of the 
 poor.'' That language gave rise to great difference of 
 
 {a) K. S 0. 413; S. 0. II C. B. N. S. 33. 
 
192 
 
 MICHAELMAS SITTINGS. 
 
 1881. judicial opinion in three cases, which arose as to its 
 Bbadlby construction : Thompson v. Ward (a), Ellis v. Burch (b), 
 Baylis. Boon V. Howard (o). This difference of opinion was 
 not, however, upon the point raised in the present case, 
 since in none of those cases was the landlord resident in, 
 or exercising any control over, the premises in respect of 
 which the vote was claimed. One question on which 
 the Courts were there divided was, whether under 
 the Act of 1867 part of a house could confer the dwell- 
 ing-house franchise, although not structurally severed 
 from the rest of the house. Another question was, 
 whether, even if under the Act of 1867 structural 
 severance was no longer necessary, it was still a bar to 
 the acquisition of the dwelling-house franchise, if one 
 part of what the claimant used as a dwelling were used 
 by him in common with other occupiers, although 
 another part was not so used. The Act of 1878 was 
 intended to settle both these questions for the future. 
 Sec. 5 of that Act defines " dwelling-house " to include 
 "any part of a house, where that part is separately 
 occupied as a dwelling," doing away, as is apprehended, 
 with the necessity for structural severance of the subject 
 of occupation, and making the test for the future the 
 separate occupation of the thing occupied, and not the 
 occupation of a separated thing. The same section got rid 
 of the other difficulty which had been raised by expressly 
 enacting that, "where an occupier is entitled to the sole 
 and exclusive use of any part of a house, that part shall 
 not be deemed to be occupied otherwise than separately 
 by reason only that the occupier is entitled to the joint 
 use of some other part." But the distinction between 
 
 (a) 1 ffopv). <t Colt. 530; 5. C. L. R. 6 C. P. 329. 
 L. R. 6 a P. 327. (c) 2 Hopw. & Colt. 208 : S. C. 
 
 (6) 1 Hopw. db Colt. 537 ; S. C. L. R. 9 C. P. ill. 
 
XLV VICTOKIA. 193 
 
 one who occupies as tenant of a dwelling-house, and one 1881. 
 who occupies as a lodger, as regards the character of bradlet 
 occupation which qualifies, remained wholly untouched baylis. 
 by the Act of 1878. That Act did no doubt contain a 
 new definition of the word " lodgings " as well as of the 
 word " dwelling-house," and that is so far material that 
 it shows that the Act of 1878 both recognised, and 
 intended to continue, the existence of a distinction 
 between the two kinds of qualification. But, in regard 
 to the character of occupation which qualifies, the Act 
 of 1878 is entirely silent. To ascertain what this must 
 be, therefore, we are thrown back upon previous legisla- 
 tion, and this, as has been already shown, required in 
 the case of the dweUing-house franchise that there 
 should be a rateable occupation. For the reasons 
 already given it is submitted that the claimants in the 
 present case are lodgers, and that, as such, they have 
 not the requisite rateable occupation to entitle them to 
 the dwelling-house franchise. 
 
 Bompas, Q.C. {Torr with him), for the claimant 
 Bradley, appellant in the Court below. The decision 
 of the Court below was correct. The reasoning of the 
 judgment there pronounced shows, that, notwithstanding 
 the statement in the case that the landlord had the 
 general control of the house, that must be read so as to 
 be consistent with the claimant's exclusive occupation of 
 the room, which was let to him. 
 
 [Jessell, M.E. Suppose that a window in the 
 claimant's room had been broken, could not the land- 
 lord have entered to repair it ?] 
 
 It may be that he could. The existence of such a 
 
194 MICHAELMAS SITTINGS. 
 
 1881. right in the landlord would not, it is submitted, be 
 Bbadlby inconsistent with an exclusive occupation of his room 
 Baths ^^ *^^ claimant. An occupying tenant is not the less 
 in exclusive occupation of the subject-matter demised 
 to him, because his landlord has reserved a right of 
 entry, so as to have the power to repair it. Here, no 
 doubt, there being no written agreement, there was no 
 express reservation of a right of entry. It is not, how- 
 ever, necessary to contest that under the Acts relating 
 to the franchise the claimant's position may have been 
 that of a lodger. In Cook v. Humher it is said (a) that 
 a lodger is a tenant if the premises are let to him, and 
 if he be tenant and occupies, then that he occupies as 
 tenant. Under the Acts relating to the franchise it is 
 quite possible that the claimant may have been in the 
 position of a lodger as well as in that of the occupier of 
 a " dwelling-house." But whether he were a lodger or 
 not within those Acts is not, it is submitted, material, 
 provided he occupied a thing which satisfied the 
 language of the definition of " dwelling-house " in 
 41 & 42 Vict. c. 26, s. 5. In other words, it is appre- 
 hended that to some extent the dwelling-house and 
 lodger franchises overlap. There is nothing in the Acts 
 relating to the franchise to prevent the borough fran- 
 chises from overlapping, just as the county franchises 
 overlap in every case where a person occupies his own 
 freehold of not less than £12 rateable value. That in 
 order to come within the 80 & 31 Vict. c. 102, s. 3, as 
 an inhabitant occupier, the claimant must be the 
 occupier of a tenement, which is rateable, is not denied. 
 He is not indeed any longer liable, as he once was, to be 
 disfranchised by the neglect of the overseers in not 
 
 (a) K. d- a. p. 424 ; S. 0. 11 0. B. N. S. p. 
 
 43. 
 
XLV VICTORIA. 195 
 
 placing his name upon the rate-book, but he must still, 1881. 
 as formerly, occupy a rateable tenement. That the over- Bbadlet 
 lapping of franchises, which has been spoken of, is not a batlis. 
 total overlapping is admitted ; it is clearly only partial. 
 A lodger, in the narrower sense of the term, is not by 
 law rateable, and a lodger of that description cannot, it 
 is admitted, be entitled to the dwelling-house franchise. 
 But in Stamper v. The Overseers of Sunderland, 
 Montague Smith, J., pointed out (a) that the word 
 lodger may probably have a wider signification under 
 the franchise Acts than the confined sense in which that 
 word is used by Maule, J., in Toms v. Luchett (h), when 
 speaking of a msre lodger. If under the franchise Acts the 
 term " lodger " be applicable to a class of persons who, 
 like the present claimants, would be rateable under the 
 statute of Elizabeth, there is nothing to prevent persons 
 so situated from being also the occupiers of " dwelling- 
 houses " within 41 & 42 Vict. c. 26, s. 5. The ground 
 on which it is suggested that under the statute of 
 Elizabeth the claimant would be rateable is, that, upon 
 the facts stated, the claimant occupied his room to the 
 exclusion of his landlord, and free from his control. No 
 doubt the occupation, which will constitute rateability, 
 cannot mean the"' mere act of physical occupation, nor 
 can it be satisfied by such an occupation as a guest at 
 an inn, or country house, has of his room. But in the 
 present case, the claimant's room was let to him, and 
 he occupied it as his home, along with his wife and 
 family. 
 
 [Jessell, M.E. Many lodgers have no other home 
 than their lodgings.] 
 
 (a) L. R. 3 0. P. p. 405. (6) 2 Lutw. 31 ; S. C. h G. B. 38, 39. 
 
 VOL. I. <S 
 
196 MICHAELMAS SITTINGS. 
 
 1881. Further, the landlord rendered no services to the 
 
 Bradley claimant, and provided no attendance. 
 
 V. 
 
 Baylis. 
 
 [Jessell, M.R. The landlord usually does not, in the 
 case of unfurnished lodgings.] 
 
 It is, at all events, an element of importance upon 
 the question of control. Smith v. The Overseers of St. 
 Michael, Cambridge (a). Further, there is the question 
 of the outer door. In Reg. v. The Assessment Committee 
 of St. George's Union (b), Cockburn, C.J., was of 
 opinion that in order to make the landlord rateable, as 
 being in construction of law the occupier, it was of the 
 utmost importance that he should have the control of 
 the outer door, and by that means of the entire dwell- 
 ing. Here that clearly is not the case, for the claimant 
 has the uncontrolled access to his room by means of a 
 key of the outer door. 
 
 [Baggallay, L.J. Do you contend that the circum- 
 stance of a person having a latch-key wiU make the 
 whole difference between his being a lodger and a 
 householder 1 ] 
 
 That must depend upon circumstances. The land- 
 lord, in giving a latch-key to his tenant, might give up 
 the last remnant of his control, and in such a case the 
 latch-key would make the difference. Where a room 
 in a house is let without more, the prmci/ixcie inference 
 is, that the landlord is excluded from it. If that be not 
 so, where the landlord is resident upon the premises, 
 the facts of the present case are, at all events, sufficient 
 
 fa\ 3 E. <£• E. 383. (6) L. R. 7 Q. B. 97 
 
XI.V VICTORIA. 
 
 197 
 
 to rebut any inference to be deduced from the fact of 
 the landlord's residence. Upon the facts stated in this 
 case the Court below drew the inference that the 
 landlord was excluded from the room which he had let 
 to the claimant. It is submitted that that was the 
 correct inference. The statement in the case, that the 
 landlord exercised a general control over the whole 
 house, is not inconsistent with this, for that statement, 
 read with the rest of the case, only comes to this, that 
 the landlord exercised a general control over the house, 
 regarded as a whole. This he might clearly do, con- 
 sistently with his exclusion from the room, which the 
 claimant occupied. The judgment delivered in Gooh v. 
 Hurriber (a) shows that the Court there considered 
 that, so far as regards occupation, there was in that case 
 a sufficient occupation as tenant to entitle the claimant 
 to the franchise, notwithstanding the fact of his land- 
 lord being resident upon the premises. It is true that 
 in that case the vote was disallowed, but the disallow- 
 ance proceeded upon the ground that the premises 
 were not structurally severed. That doctrine is now 
 done away with, so far as regards its application to the 
 " dwelling-house " franchise, but the reasoning of the 
 judgment remains, and that reasoning is distinctly 
 applicable to the case before the Court. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MOBFEE V. NOVIS. 
 
 In this case no one appeared for Novis, the respondent Morpee 
 in the Court below. No vis. 
 
 Biron was heard for the claimant Morfee, and con- 
 Co) K. ^ G. 413 ; S. C. 11 C. B. N. S. 33, 
 
 Q2 
 
198 
 
 MICHAELMAS SITTINGS. 
 
 1881. tended that the facts stated in the case established that 
 
 MoRPSE he had the exclusive occupation of the two rooms let to 
 
 V. 
 
 Novis. 
 
 KiRBT 
 
 V. 
 BiPPEN. 
 
 him. 
 
 KiRBY V. BiFFEN. 
 
 Sir H. Gifard, Q.C. (J). Kingsford with him), for 
 the appellant. The claimant in this case was a lodger, 
 and not the occupier of a " dwelling-house." If, in order 
 to make this out, it be necessary to contend that the 
 landlord retained control over the house in which the 
 claimant lodged, it is submitted that he did so. It is 
 true that the case finds that "save as aforesaid" the 
 landlord did not retain control over the house. But 
 that saving clause points, in the first place, to the fact 
 that the landlord did the whole of the repairs ; and, 
 secondly, to the fact that the passage and staircase 
 were not demised, so that as to those parts of the house, 
 at all events, the landlord was clearly in legal occupa- 
 tion. The statement that the house was " wholly let 
 out " must not be read strictly, but in a popular sense, 
 as meaning no more than that all the rooms in the 
 house were let. 
 
 [Bompas, Q.C, for the respondent, assented to the 
 case being argued on the assumption that the passage 
 and staircase were not demised, and that, in regard to 
 them, the claimant had only a right of ingress and 
 egress over them.] 
 
 It is submitted that, under these circumstances, the 
 claimant was merely a lodger. Upon this point 
 Edivards v. Lang, Broimie's Case (a), is an authority 
 for the claimant, the landlord in that case having less 
 control over the house than the landlord has here. - The 
 
 (a) 3 /)•. Rep. C. L. 394. 
 
XLV VICTORIA. 199 
 
 statement in that case was as follows : "That the entire 1881. 
 
 of the house was let out in tenements ; that the land- Kibby 
 lord did not reside on the premises, and had not bipfen. 
 retained any portion of them in his own hands ; that 
 no caretaker nor any representative of the landlord 
 resided in the house ; and that the landlord had no key 
 of the outer door, nor any means, independently of the 
 will of the tenants, of admitting himself into the house, 
 if the outer door were closed." In the course of the 
 judgments there delivered it is said, that a lodger is a 
 person occupying rooms as a residence in the dwelling- 
 house of another, language which is applicable to the 
 case now before the Court. The majority of" the Court 
 were there of opinion that the claimant was a lodger, 
 and, as such, they held that he was entitled to the 
 lodger franchise. It is true that two of the Judges 
 threw out a suggestion, that if in that case the claimant 
 had been rated, he might also have qualified himself 
 as an occupier ; but this suggestion does not seem to 
 have been assented to by the other members of the 
 Court. In holding the claimant to be a lodger, the 
 majority of the Court appear to have considered that, 
 parts of the premises being, as was said, undemised to 
 any one, the house remained, in legal construction, in 
 the landlord's occupation. Upon a change of any of the 
 lodger tenants, the landlord would necessarily have to 
 come in to make preparations for a new tenant, and he 
 would also have to do so for the purpose of cleansing 
 the premises and executing repairs. 
 
 [Bl^ETT, L.J. In Morton v. Palmier (a) this Court 
 held that a person was not a lodger within the Lodgers' 
 
 (a) 51'L.J.N.S.(I.B.D.7. 
 
200 MICHAELMAS SITTINGS. 
 
 1881. Goods Protection Act (34 & 35 Vict. c. 79), if his land- 
 KiKBY lord did not retain the power and dominion over the 
 BiFt'EN. house as its master.] 
 
 Actual residence of the landlord in the house is 
 clearly not essential. So much, at all events, is shown 
 by Form H. in the schedule to 41 & 42 Vict. c. 26, 
 though the language of that form is no doubt consistent 
 with the possibility of the landlord putting a servant 
 into the house to represent him, when he himself 
 resides elsewhere. But it certainly seems a somewhat 
 strong proposition that, where an ordinary house is 
 wholly let»out, so as to leave no part actually occupied 
 by the landlord or his servants, it cannot be a case of 
 lodgings, when sec. 7 of the Kepresentation of the People 
 Act, 1867 (30 & 31 Vict. c. J 02), expressly enacts that 
 " when the dwelling-house or tenement shall be wholly 
 let out in apartments or lodgings not separately rated, 
 the owner of such dwelling-house or tenement shall be 
 rated in respect thereof to the poor rate.'' That clause, 
 which is engrafted as an exception on what precedes, 
 and which in terms contemplates a house being wholly 
 let out in lodgings, is still in force and unrepealed. Its 
 language, it is submitted, supports very strongly the 
 view that the claimant is a lodger within the meaning 
 of the Act of 1867. Moreover, it expressly enacts that 
 the landlord " shall be rated," as a consequence of which 
 it follows that the claimant, not being by law liable to 
 be rated, is not a rateable occupier within sec. 3 of the 
 same Act. Sec. 19 of the Poor Rate Assessment and 
 Collection Act, 1869 (32 & 33 Vict. c. 41), will prdbably 
 be relied on by the other side as preserving the 
 claimant's franchise, notwithstanding that he is not 
 rated ; but that section, it is submitted, does not apply 
 
XLV VICTORIA. 201 
 
 to the case before the Court. It applies only to the 1881. 
 case of rateable occupiers, not to those who are merely Kibby 
 lodgers. Sec. 14 of 41 & 42 Vict. c. 26, which was biffen. 
 passed to explain the last-mentioned enactment, has, 
 for similar reasons, no application. 
 
 [BfeETT, L.J. In what kind of a case do you say that 
 what is, ia fact, only part of a house will constitute a 
 " dwelling-house ? "] 
 
 It may be difficult to answer the question. 
 
 [Jessell, M.R It is plain from the Act of 1878, 
 sec. 5, that there must be some parts of houses which are 
 to be deemed " dwelling-houses," and it is that enact- 
 ment which we have to construe.] 
 
 It is enough if the claimant can show that the present 
 case is not within the section. In practice no one ever 
 heard of a lodging, such as the claimant occupies, being 
 separately rated, and for the reasons adduced it is 
 contended that he is not separately rateable in respect 
 of it. 
 
 Bompas, Q.C. (R. S. Wright with him), for the 
 claimant Biffen. The claimant in this case is clearly 
 the occupier of a dwelling-house. The section on which 
 the other side have mainly relied — sec. 7 of the Act of 
 1867 — ^though not in terms repealed, is repealed in 
 effect by the Poor Rate Assessment and Collection Act, 
 1869 (32 & 33 Nict. c. 41). Sec. 7 of the Act of 1867 
 had prohibited the rating of owners in parliamentary 
 boroughs, engrafting on that prohibition the exception 
 on which the other side have relied. The Act of 1869, 
 
202 MICHAELMAS SITTINGS. 
 
 1881. by restoring the rating of owners in specified cases, 
 KiBBY repealed the prohibition, and the clause of exception 
 BiFFRN. fsU to the ground along with it. The same Act of 1869 
 by its 6th section expressly repealed the Small Tene- 
 ments Act (13 & 14 Vid. c. 99) and the local Acts 
 having a similar operation. It has been said on the 
 other side that sec. 19 of the Act of 18C9 does not 
 apply to the present case ; but it clearly does. That 
 section preserves the franchise of an occupier, whether 
 he has been actually rated or not, provided the rates 
 have been paid by some one, so that it is sufficient, 
 under that enactment, if the claimant be the occupier 
 of a rateable tenement. And here the claimant clearly 
 is. The existing authorities place this beyond a doubt. 
 Boon V. Howard (a) is identical in its facts with the 
 case' before the Court. Comparing the judgments in 
 Boon V. Howard (a) with sec. 5 of the Act of 1878, it 
 is evident that the Legislature intended, when passing 
 that enactment, to embody the views of those judges 
 who in Boon v. Howard (a) were of opinion, that a 
 person, in every respect similarly situated to the present 
 claimant, was a person entitled to the dwelling-house 
 franchise. In Stamper v. Overseers of Sunderland (b) all 
 , the Judges were agreed that premises similarly situated 
 to those in the present case would, under the statute of 
 Elizabeth, have been separately rateable. Toms v. 
 Luckett (c) is another authority in point. The only 
 case on which the other side rely is Edwards v. Lang (d). 
 In that case, several of the Judges were of opinion that 
 the claimant would, if rated, have been entitled to the 
 franchise as an occupier. The ground on which the 
 
 (a) 2 Hnpio. & Colt. 208 ! S. 0. (c) 2 iMtw. 19; S. C 5 O. B 
 
 L. R. 9 C. P. 277. 23. ' ■ 
 
 (h) L. R. 3 C. P. 388. (d) 3 /,-. Rep. C. L. 394. 
 
XLV VICTORIA. 203 
 
 majority of the Court held him entitled as a lodger was, 1881. 
 that the rooms which he occupied were not structurally kibby 
 severed. But the Act of 1878 having done away with biffen 
 the doctrine of structural severance, the reasoning on 
 which those judgments proceeded is no longer applicable, 
 and the case turns out, upon investigation, an authority 
 for the claimant. C. A. V. 
 
 Jessel, M.R. now (Dec. 21) said. These are three Bbadlkt 
 
 V. 
 
 appeals from the decision of a Divisional Court Batus. 
 affirming the right of the claimants in each case to be y. 
 
 put on the householders' list as voters for a borough ; kikbt 
 and they raise very important questions as to the proper biJj™ 
 construction to be given to the various Acts of Parlia- 
 ment bearing on this subject, and also as to a very 
 vexed question on which there has been a great diver- 
 sity of judicial opinion, that is, what constitutes a 
 lodger as distinguished from an occupying tenant of 
 part of a house. 
 
 The history of the legislation on this matter must be 
 referred to, in order to make my judgment intelligible. 
 
 The franchises which are in question were first con- 
 ferred by the Representation of the People Act, 1867 
 (30 & 31 Vict. c. 102). TJp to that time, there was no 
 household franchise, except at a value of £10, and there 
 was no lodger franchise at all. The effect of that Act 
 was to confer for the first time a household franchise 
 irrespective of value, and a lodger franchise. 
 
 Those two franchises were conferred respectively by 
 ss. 3 and 4 of that Act. Sec. 3 enacts : " Every man 
 shall, in and after the year 1868, be entitled to be 
 registered as a voter, and, when registered, to vote for a 
 member or members to serve in Parliament for a 
 borough, who is qualified as follows." I need not read 
 
204 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MOKFEE 
 V. 
 
 Novis. 
 
 KiRBY 
 
 V. 
 BiFFEN. 
 
 the first qualification, which does not bear upon the 
 question. The second is, that he "is on the last day of 
 July in any year, and has during the whole of the pre- 
 ceding twelve calendar months been, an inhabitant 
 occupier, as owner or tenant, of any dwelling-house 
 within the borough : " the third is, that he " has during 
 the time of such occupation been rated as an ordinary 
 occupier in respect of the premises so occupied by him 
 within the borough to all rates (if any) made for the 
 relief of the poor in respect of such premises : " and the 
 fourth is, that he "has on or before the 20th day of 
 July in the same year hondfide paid an equal amount 
 in the pound to that payable by other ordinary occupiers 
 in respect of all poor rates that have become payable by. 
 him in respect of the said premises up to the preceding 
 5th day of January.'' And then there is a proviso 
 " that no man shall under this section be entitled to be 
 registered as a voter by reason of his being a joint 
 occupier of any dwelling-house." Then the fourth 
 section conferred the lodger franchise. The lodger was 
 to occupy " in the same borough separately and as sole 
 tenant for the twelve months preceding the last day of 
 July in any year the same lodgings, such lodgings being 
 part of one and the same dwelling-house, and of a clear 
 yearly value, if let unfurnished, of £10 or upwards." 
 
 It is to be observed that neither of those sections 
 gives any definition to show what an "inhabitant 
 occupier, as tenant," means, nor what a " lodger " means ; 
 but when we look at the conditions which the " inhabi- 
 tant occupier, as tenant," had to fulfil, inasmuch as he 
 had to pay rates and to be rated, it is clear, whatever 
 his occupation was, it was to be a rateable occupation; 
 and, as the law then stood, that would not include 
 a lodger. Therefore, whatever the "inhabitant occupier. 
 
XLV VICTORIA. 
 
 205 
 
 as tenant," was, he was not a lodger, and whatever 
 the lodger was, he was not " an inhabitant occupier, as 
 tenant." 
 
 The next section which must be looked at is the 7th, 
 and there it is provided that " where the owner is rated 
 at the time of passing this -Act to the poor rate in 
 respect of a dwelling-house or other tenement situate 
 in a parish wholly or partly in a borough, instead of 
 the occupier, his liability to be rated in any future poor 
 rate shall cease, and the following enactments shall 
 take effect with respect to rating in all boroughs: — 
 1. After the passing of this Act, no owner of a dwelling- 
 house or other tenement situate in a parish either 
 wholly or partly within a borough shall be rated to the 
 poor rate instead of the occupier, except as hereinafter 
 mentioned. 2. The full rateable value of every dwell- 
 ing-house or other separate tenement, and the full rate 
 in the pound payable by the occupier, and the name of 
 the occupier, shall be entered in the rate-book. 
 
 "Where the dwelling-house or tenement shall be 
 wholly let out in apartments or lodgings not separately 
 rated, the owner of such dwelling-house or tenement 
 shall be rated in respect thereof to the poor rate." 
 
 Those words seem to point to the case of something 
 which could be rateable, though not separately rated. 
 It is not impossible that the framers of that section 
 intended only to deal with the fact of premises not being 
 separately rated, and that they were aware that there 
 could be some kinds of apartments in a house that were 
 capable of being separately rated. 
 
 The only other section which I think it is necessary 
 to refer to is the 61st, which gave rise to considerable 
 difficulty. That section contains a definition of " dwell- 
 ing-house," and it says that "'dwelling-house' shall 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiBBY 
 
 V. 
 BiFFEN. 
 
205 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 T. 
 
 Baylib. 
 
 MOSFEE 
 V. 
 
 Novia. 
 
 KiBBY 
 V, 
 
 BiFFEN. 
 
 include any part of a house occupied as a separate 
 dwelling, and separately rated to the relief of the poor." 
 What that means nobody can say. Accordingly, the 
 meaning of it was very fully discussed, and with the 
 result, which I think might fairly have been expected, 
 of giving rise to a great difference of judicial opinion. 
 Whenever you make something include something else, 
 which it does not, of course you give rise to a difficulty : 
 that must necessarily be so : and the question soon 
 arose, what is the meaning of "part of a house occupied 
 as a separate dwelling " ? In one sense, every room 
 which is occupied separately as a dwelling is occupied 
 as a separate dwelling, though there is a sense in which 
 it is not so occupied ; for a man may have the use, and 
 even the exclusive use, of a room, like a guest at an inn, 
 or a visitor at a country house, and yet not be in the 
 occupation of it in a legal sense. One set of Judges 
 thought that it meant any part of a house, irrespective 
 of the way in which the house was built : other Judges 
 that it meant any part of a house that was structurally 
 separated from the rest of the house, that is, with a 
 door shutting off or separating that part from the rest 
 of the house, and then separately rated to the relief of 
 the poor. Of course, no question of that sort arises here. 
 Soon after the passing of the Act of 1867, it was 
 discovered that the result of the " ratepaying " clauses, 
 as they are called, in that Act, was td curtail the 
 right which it had been assumed was given to house- 
 holders in respect of their tenements, without refer- 
 ence to the value of such tenements, to vote in the 
 election of members of Parliament. Accordingly, the 
 law was amended by an Act of 1869 (32 & 33 Vict. 
 c. 41), by the 3rd section of which it was enacted that 
 the owner might agree to pay rates, being allowed a 
 
XLV VICTORIA. 
 
 207 
 
 commission ; and then, by the 4th section, the vestry 
 might order the owner to be rated instead of the 
 occupier. Then the 19th section is this : " The over- 
 seers in making out the poor rate shall, in every case, 
 whether the rate is collected from the owner or occupier, 
 or the owner is liable to the payment of the rate 
 instead of the occupier, enter in the occupiers' column 
 of the rate-book the name of the occupier of every 
 rateable hereditament, and such occupier shall be 
 deemed to be duly rated for any qualification or 
 franchise as aforesaid." Tlien, if by their default any 
 names, are omitted, the overseers are to be liable to 
 a penalty, " provided that any occupier whose name 
 has been omitted shall, notwithstanding such omission, 
 and that no claim to be rated has been made by him, 
 be entitled to every qualification and franchise depend- 
 ing upon rating, in the same manner as if his name had 
 not been so omitted." The result of that Act appears 
 to be, that every man who occupied a rateable tenement 
 (" hereditament " it is called in the Act) was to be 
 deemed to be rated, and was to be entitled to vote, 
 though not rated, and though he had not paid rates. 
 The section says "deemed to be duly rated for any 
 qualification or franchise as aforesaid." But then it is 
 necessary to pass to the Act of 1878 (41 & 42 Viet. 
 c. 26), the 14th section of which enacts that the 19th 
 section of the prior Act of 1869 is not to be confined 
 to the cases mentioned in the 3rd and 4th sections of 
 that Act, but is to be of general application. The 
 result, therefore, of these Acts, taken together, is that 
 the householder (that is the man entitled to be rated as 
 a householder) who occupies a portion of a dwelling- 
 house, which portion is capable of being rated or is 
 rateable, whether he is rated or not, and whether he 
 
 1881. 
 
 Bbadlbt 
 
 V. 
 
 Batlis. 
 
 MOBFEK 
 V. 
 
 Novis. 
 
 KiKBY 
 
 V. 
 BiFPBN. 
 
208 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bhadlet 
 
 V. 
 
 Batms. 
 
 MORFEE 
 V. 
 
 ■Novis. 
 
 KlEBY 
 
 V. 
 BiFFEN. 
 
 pays rates or not (assuming, of course, that somebody 
 pays them), is entitled to vote. 
 
 That is the position of the matter as regards occu- 
 piers. As I said before, a lodger is not rateable, and 
 therefore there is a broad line of demarcation between 
 a lodger and an occupier of part of a dwelling-house, 
 for one is not rateable and the other is. 
 
 I come now to sec. 5 of the Act of 1878, which enacts 
 (among other things) : " In and for the purposes of 
 the Eepresentation of the People Act, 1867, the term 
 ' dwelling-house ' shall include any part of a house 
 where that part is separately occupied as a dwelling, 
 and the term ' lodgings ' shall include any apartments 
 or place of residence, whether furnished or unfurnished, 
 in a dwelling-house. For the purposes of any of the 
 Acts referred to in this section, where an occupier is 
 entitled to the sole and exclusive use of any part of a 
 house, that part shall not be deemed to be occupied 
 otherwise than separately by reason only that the 
 occupier is entitled to the joint use of some other part. 
 The interpretation contained in this section of ' dwell- 
 ing-house ' shall be in substitution for the interpreta- 
 tion thereof contained in sec. 61 of the Representa- 
 tion of the People Act, 1867, but not so as to affect any 
 of the other provisions of the said Act relating to 
 rating." Then, the 6th section deals with the rights of 
 lodgers. I need not read it. It is sufficient to say that 
 it shows that lodgers are still considered to exist as a 
 separate class, and as being entitled to the franchise as 
 lodgers. 
 
 One part of the 5th section, therefore, gets rid of the 
 separate rating in the definition of a " dwelling-house " 
 by the Act of 1867, and another part gets rid of the 
 dicta of learned Judges as to a joint use of other parts 
 
XLV VICTORIA. 
 
 209 
 
 of tlie house. There had been a difference of opinion 
 on that point also, — ^whether a man was to be deemed 
 an occupying tenant within the Act of 1867, if he 
 occupied separately a part of a house, and used, 
 jointly with others, another part of the same house. 
 But the importance of this section is this : it shows 
 that part of a dwelling-house not structurally separated, 
 that is, a room in an ordinary dwelling-house, may 
 confer the household franchise ; and the question we 
 have to consider is, On what terms is a man entitled to 
 the franchise as a householder ? It follows, from what 
 I have said before, that he must occupy a rateable 
 tenement ; and, therefore, we stiU have a distinction 
 between the household franchise and the lodger fran- 
 chise, — that the householder must occupy a rateable 
 tenement, but the lodger need not, and, indeed, cannot 
 be rated. 
 
 That being so, it remains to consider when a man 
 who occupies a rateable tenement is an occupying 
 tenant, and when he occupies or uses it as a lodger 
 only. 
 
 There is, probably, no question on which there has 
 been a greater variety of judicial opinion than this. 
 The question has arisen, first of all, under the rating 
 Acts, as to whether or not certain occupations were 
 rateable ; secondly, it has arisen in Ireland, under one 
 of the Parliamentary Franchise Acts ; and, thirdly, it 
 has arisen in this country under the Lodgers' Protection 
 Act, 1871 (34. & 35 Vict. c. 79), which protects the 
 lodger from distress by the superior landlord, where he 
 has paid his rent to his immediate landlord. All I can 
 say is, that, having considered the cases upon the 
 question, I am of opinion that it is impossible to recon- 
 cile them. You must prefer some to others ; for to say 
 
 1881. 
 
 Beadlett 
 
 V. 
 
 Batlis. 
 
 MOKFEK 
 V. 
 
 Novis. 
 
 KiBBT 
 
 T. 
 BiFFEN. 
 
210 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Bati.ib. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KlEBY 
 V. 
 
 BlFFEN. 
 
 they are all right, is, in my opinion, impossible ; and 
 this only shows that it is a very difficult question. 
 Again, I have been quite unable, so far as I am con- 
 cerned, to frame an exhaustive definition. Some Judges 
 have tried to do so, and, in my opinion, they have 
 failed ; and I think it wiser and safer to say that the 
 question whether a man is a lodger, or whether he is 
 an occupying tenant, must depend on the circumstances 
 of each case. But that, of course, will give very little 
 assistance to Revising Barristers ; and I think, there- 
 fore, that I ought to go further, and state what cases, 
 in my opinion, are cases of occupying tenants, and 
 what cases are cases of lodgers, and to say that the 
 descriptions are not exhaustive, and that there may and 
 must be cases between them, as to which it is wholly 
 impossible to give an opinion until their details are 
 known. 
 
 First of all, take the case of a lodger. It seems to 
 me, as to unfurnished lodgings (and I will only deal 
 with unfurnished lodgings, as it is the only class of 
 cases with reference to which questions are likely often 
 to arise), where the owner of a house does not let the 
 whole of it, but retains a part for his own residence, 
 and resides there, and where he does not let out the 
 passages, staircases, and outer door, but retains the 
 ownership of all of them, giving .to the "inmates". (I use 
 that term for my present purpose) merely a right of 
 access, which is sometimes called a right of ingress and 
 egress, and retaining a control over the passages, stair- 
 cases, and outer door, with a right of interfering, — I do 
 not mean an actual interference, but a right to inter- 
 fere, — a right to turn out trespassers, and so on ; there 
 I consider that the owner is the occupying tenant of 
 the house, and the inmate, whether he has or has not 
 
XLV VICTORIA. 
 
 211 
 
 the exclusive use of the room, is a lodger. That is one 
 extreme case. 
 
 Now I take another. Where the landlord lets out 
 the whole of the house into separate apartments, and 
 lets out each floor separately, so as to demise the pas- 
 sages, reserving simply to each inmate of the upper 
 floors the right of ingress and egress over the lower 
 passages, but parts entirely with the whole legal owner- 
 ship for the term demised, and retains no control over 
 the house ; there, in my opinion, the inmates are 
 occupying tenants, and are capable of being rated as 
 such. That is the extreme case on the other side. 
 
 There will be an immense number of intermediate 
 cases, which, as I said before, can only be dealt with as 
 they arise. I have dealt with them as well as I can, 
 but, for the reasons I have given, I can only deal with 
 them imperfectly. I have tried in vain to frame an 
 exhaustive definition satisfactory to my own mind. Take 
 such a case as the first of those before us. Does it 
 make any difference that the inmates have latch-keys 
 to the outer door and also keys to the inner door ? I 
 think not. I think they are still lodgers notwithstand- 
 ing. Does it make any difference that the landlord 
 does not reside there personally, but has resident ser- 
 vants, who occupy, on his behalf, part of the house ? I 
 think not. I think the inmates are still lodgers. Does 
 it make any difference that the landlord does or does 
 not repair, or does or does not pay rates or taxes ? I 
 think not ; they are still lodgers. 
 
 On the other hand, suppose a landlord does not 
 demise the whole of the house, but demises all the 
 rooms in it — everything that can be demised, in fact, 
 except the passages and staircases, &;c., as to which he 
 gives the inmates the right of ingress and egress, but 
 
 1881. 
 
 Bbadley 
 
 V. 
 
 Batus. 
 
 MOEPEE 
 V. 
 
 Novis. 
 
 KiRBT 
 V. 
 
 ElFPEN. 
 
212 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadley 
 
 V. 
 
 Baylis. 
 
 MOBFEB 
 V. 
 
 Novis. 
 
 KiRBY 
 V. 
 
 BiFFEN. 
 
 exercises no control over, and does not reside in, or in- 
 terfere in any way with, the house — I think the inmates 
 are occupying tenants. The fact of the passages and 
 staircases, &c., not being actually demised, is not suffi- 
 cient to distinguish them from occupying tenants. Here, 
 again, does the fact of the landlord repairing or paying 
 rates and taxes make any difference ? I think not. In 
 the case of tenants from year to year it very often 
 happens that the landlord repairs. But his right to 
 enter in order to make such repairs does not, in my 
 opinion, prevent the occupation of the tenant being a 
 separate and rateable occupation. 
 
 I have given these illustrations for the purpose of 
 aiding those who have to consider these matters, and I 
 think further aid will be obtained from the considera- 
 tion of the actual cases themselves which we have to 
 decide. 
 
 Now, they are three in number. The first is the 
 case of Bradley v. Baylis, and the terms of the special 
 case, as amended, are these : — [His Lordship here read 
 the facts from the special case.] 
 
 It follows, from what I have already said, that, in my 
 opinion, the claimant in this case is a lodger. The 
 landlord resides in the house and has a general control 
 over it ; in other words, I think the claimant lives with 
 him as a lodger, and is properly so described. There- 
 fore, I think that the appeal ought to be allowed, the 
 claimant not being a householder, and not capable of 
 being rated, but being a mere lodger. 
 
 The next case is that of Morfee v. Novis. The 
 claimant occupied two rooms in a dwelling-house in 
 the borough of Hastings. [His Lordship here read a 
 portion of the facts from the special case, adding that 
 it was unnecessary to read all the facts again.] The 
 
XLV VICTORIA. 
 
 213 
 
 landlord occupied " all the rest of the house except the 
 two rooms " let to the claimant, and the claimant had 
 only a right of access. The mere fact of his having a 
 key of the outer door does not, in my opinion, make 
 him other than a lodger; he is not the landlord of 
 the house ; and, in my opinion, in this case also the 
 appeal ought to be allowed. 
 
 The third case is that of Kirhy v. Biffen. [His 
 Lordship here read the facts of the special case.] 
 
 It follows, from what I have said, that this claimant 
 is an occupying tenant. The landlord has no control 
 over the house, and he does not interfere with it in any 
 way whatever. He neither lives there himself, nor do 
 his servants, and he does not render any service to the 
 tenants. He lets out the whole house in the way in 
 which it is usually let, that is, he lets out all the rooms, 
 with the right of ingress and egress, and the keys are in 
 the possession of the tenants. It does seem to me, that 
 if there can be a case at all in which part of a house 
 can be " separately occupied as a dwelling," this is that 
 case. It is true that it was admitted in the argument, 
 and must be treated as though it were alleged in the 
 special case, that the passage and staircase were not 
 demised, and that the tenants had only a right of ingress 
 and egress over them ; but the case of a landlord demis- 
 ing passages and staircases is practically unknown, and 
 I do not think such a thing has ever occurred. At all 
 events, it is not the usual way of letting, and one cannot 
 suppose that the Legislature contemplated and intended 
 only to include such an extreme and peculiar case as 
 that. 
 
 It appears to me, therefore, that in this last case the 
 claimant was entitled to be put on the householders^ 
 list, and the appeal ought to be dismissed. 
 
 b2 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Bayhs. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiBBY 
 V. 
 
 Biffen. 
 
214 
 
 MICHAELMiS SITTINGS. 
 
 1881. 
 
 Bbadlby 
 
 V. 
 
 Batlis. 
 
 MORFEE 
 V. 
 
 Novis. 
 
 KiKBY 
 
 V. 
 BiFFBN. 
 
 Baggallay, L.J. lu each of the three appeals now 
 under our consideration, we have to determine whether 
 the claimant is qualified in respect of his occupation of 
 a part of a house, within a borough in England, to vote 
 for a member to serve in Parliament for that borough. 
 
 I deem it unnecessary to refer to the facts detailed in 
 the several cases stated by the Revising Barristers, but 
 will proceed at once to consider the statutory provisions 
 which bear upon the questions involved. 
 
 Under the 27th section of the Reform Act of 1832 
 (2 WUl. 4, c. 45), the borough franchise could be 
 acquired by the occupation, as owner or tenant (under 
 certain conditions as to value and rating), of "any 
 house, warehouse, counting-house," " or other building " 
 within the borough. 
 
 The question as to what constituted a house within 
 the meaning of this Act became the subject of numerous 
 judicial decisions, more or less conflicting, all of which 
 were considered and reviewed in the case of Goolc v. 
 Humber (a), the efifect of the decision in which was 
 that, although a room or -rooms in a house might con- 
 stitute a " house," so as to satisfy the statute, it was 
 essential, in order that the qualification should be suffi- 
 cient, that there should be an actual or structural 
 severance of such room or rooms from the other portions 
 of the house. Chief Justice Urle, in the course of his 
 judgment, said; "We -consider that the qualification 
 fails, because the subject of occupation was not a house, 
 but only a part of a house, without any actual severance 
 from the rest." 
 
 But in Cook v. Humber («), as was pointed out by 
 Mr. Justice Willes in the course of his judgment in 
 
 [a) K. ct G. il3; S. C. 11 C.B. N. B. 33. 
 
XLV VICTORIA. 
 
 215 
 
 Thompson V. Wart^ (a), to which I shall have occasion 
 to refer presently, no certain rules were laid down for 
 determining what amount of severance would be suffi- 
 cient to support the qualification. 
 
 In 1867, the statute 30 & 31 Vict. c. 102, was passed. 
 Two borough franchises were conferred by this statute. 
 By the 3rd section the franchise was conferred upon 
 every man who (having qualified in other respects, 
 which need not be more particularly alluded to) should 
 on the last day of July in any year be, and should, 
 during the whole of the preceding twelve calendar 
 months, have been, " an inhabitant occupier, as o^uner 
 or tenant, of any dwelling-house within the borough," 
 and should during the time of such occupation have 
 been rated as " an ordinary occupier," in respect of the 
 premises so occupied by him, to all rates made for the 
 relief of the poor, and should have paid a specified pro- 
 portion of such rates ; and it was further provided that 
 no man should, under that section, be entitled to be 
 registered as a voter by reason of his being a joint 
 occupier. of any dwelling-house. 
 
 By the 4th section of the same statute, the borough 
 franchise was, in like manner, conferred upon every 
 man who as a lodger should have occupied in the 
 borough " separately and as sole tenant for the twelve 
 months preceding the last day of July in any year the 
 same lodgings, such lodgings being part of one and the 
 same dwelling-house." By the 61st section it was 
 enacted that the term " dwelling-house," as used in the 
 Act, should include " any part of a house occupied as a 
 separate dwelling, and separately rated to the relief of 
 the poor." 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MOBFEB 
 V. 
 
 Novis. 
 
 KiRBY 
 V. 
 
 BiFFEN. 
 
 (a) 1 Bopw. cfe Colt. 530; S. 0. L. B. 6 C. P. 327. 
 
216 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Beadley 
 
 V. 
 
 Baylis. 
 
 MOKFEB 
 V. 
 
 Novis. 
 
 KiKBY 
 
 V. 
 
 Biri?£N, 
 
 Now it appears to me clear that it was the intention 
 of the Legislature to establish a distinction between 
 two qualifications necessary to confer the " occupation 
 franchise " and the " lodger franchise," as the two fran- 
 chises ai-e conveniently, though, perhaps, not very 
 accurately, described in the margin of the authorized 
 editions of the statute. Nor is there, in my opinion, 
 any sufficient reason for holding, as has been suggested 
 in argument, that the two qualifications might overlap; 
 in other words, that the same occupation might supply 
 both qualifications, leaving it open to the occupier to 
 assert his right to either or both of the franchises. 
 
 It appears to me unreasonable to suppose that it 
 should have been intended by the Legislature that an 
 occupation of the same nature should confer " the lodger 
 franchise," if the part of the house occupied were of the 
 clear annual value of £10, and should confer the 
 " occupation franchise,'' if it were of less value. 
 
 To acquire the " occupation franchise " by the occu- 
 pation of a part of a house it was essential that the 
 part of the house should be ''occupied as a separate 
 dwellings" that it should be "separately rated to the 
 relief of the poor," and that the occupier should occupy 
 "as owner or tenant;" but there was no condition as 
 to annual value. To acquire the " lodger franchise " by 
 the occupation of a part of a house it was essential that 
 the part of the house should be occupied as " a lodging," 
 that it should be of a clear yearly value of £10, that the 
 occupier should occupy " as lodger," and that he should 
 occupy " separately, and as sole tenant ;" but there was 
 no condition as to the part of the house so occupied 
 being rated. 
 
 With respect to the necessity of the occupier occupy- 
 ing " as oiimer 07' tenant," it should be borne in mind 
 
XLV VICTORIA. 
 
 217 
 
 that this was required by the Act of 1832, and that in 
 several cases the occupying lodger was not recognised as 
 a tenant within the meaning of the Act, though he was 
 doubtless a tenant in the ordinary acceptation of the 
 word ; as, for instance, in Pitts v. Smedley (a), where 
 the claimant was held not to occupy as tenant because 
 he had not the key of the outer door, and the landlord 
 resided on the premises; and in Wansey v. Perkins 
 (Hill's case) (b), where he was held to be a lodger, and 
 not a tenant within the meaning of the Act, because the 
 landlord remained in possession of the rest of the house. 
 
 On the other hand, in Score v. Huggett (c), the 
 claimant was held qualified as a tenant, because he had 
 the key of the outer door. It must also be borne in 
 mind that the Act of 1867, though it for the first time 
 introduced the " lodger franchise," did not contain any 
 definition either of the word " lodger " or of the word 
 "lodgings." It, however, recognized the lodger as a 
 tenant, for it required, as I have already mentioned, 
 that he should occupy as the sole tenant of the lodgings. 
 
 Having regard to these several considerations, I am 
 of opinion that the Legislature used the words " lodger " 
 and " lodgings " in their ordinarily accepted sense, as 
 illustrated in the several cases to which I have alluded, 
 and in other cases of a similar character, amongst 
 which I would particularly include Stamper v. The 
 Overseers of Sunderland (d) ; and I am further of 
 opinion that section 3 of the Act of 1867 must be 
 treated as having reference to an occupying tenant 
 other than a lodger. 
 
 Shortly after the passing of the Act of 1867, questions 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 IClBBY 
 
 V. 
 BiFFEN. 
 
 (o) 1 Lutw. 196 ; S.0.7M.<b G. (c) 1 Lutw. 198 ; S.C.I M.& Q. 
 
 85. 
 
 (6) 1 Lviw. 252; S. C.I M.& G. 
 151. 
 
 95. 
 
 (d) L. R. 3 a P. 388. 
 
218 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlet 
 
 V. 
 
 Bay LIS. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiKBY 
 
 V. 
 
 Bit'FEN. 
 
 arose as to the construction to be put upon the words 
 " part of a house occupied as a separate dwelling." 
 
 Several cases, and notably those of ThoTnpson v. 
 Ward (a) and Ellis v. Bv/rch {b), were brought under 
 the consideration of the Court of Common Pleas, as the 
 Court of Appeal in registration matters. The facts of 
 these cases may be concisely stated as follows, and it is, 
 in my opinion, important to bear them in mind : — The 
 claimant in Thompson v. Ward (a), occupied one room 
 in a house consisting of nine rooms ; the landlord did 
 not reside upon the premises, and the other rooms were 
 occupied by other tenants ; the claimant had the exclu- 
 sive use of the room occupied by him, and the passages, 
 staircase, and other conveniences were common to him 
 and all the other tenants. There was one outer or 
 street-door to the passage, which was never closed, and 
 which was without lock or bolt. In Ellis v. Burch (6), 
 the claimant occupied two rooms on different floors, the 
 outer door was fastened with an ordinary lock and 
 bolt, and was usually closed at night by one or other of 
 the tenants ; in other respects the details were substan- 
 tially the same as in Thompson v. Ward (a). In each 
 case, the part of the house in the occupation of the 
 claimant was separately rated to the relief of the poor, 
 and the Revising Barrister in each case was of opinion 
 that the premises occupied by the claimant were not a 
 "dwelling-house" within the meaning of the Act of 
 1867, and disallowed the claim. Upon appeal to the 
 Court of Common Pleas, the Judges were equally 
 divided in opinion, and the decisions of the barristers 
 were consequently affirmed; the appeals were argued 
 and disposed of together. 
 
 [a) 1 Ifopw. & Colt. 630 ; S. C. 
 L. n. 6 C. p. 327. 
 
 (6) 1 Hopw. & Colt. 5Z7: S. C. 
 L. R. 6 C. P. 329. 
 
XLV VICTORIA. 
 
 219 
 
 In the course of his judgment, Mr. Justice Willes 
 expressed the opinion that it was not intended by the 
 Act of 1867 that a man should have a vote as the 
 occupier of a " dwelling-house " which would not have 
 been a " house " within the meaning of the Act of 1832 ; 
 and taking Cook v. Hnmber (a) as his guide, he held 
 that by the use of the words " a part of a house occupied 
 as a separate dwelling," the Legislature meant some- 
 thing which could properly be called a dwelling-house, 
 and which was structurally, or at least practically, sepa- 
 rated from the rest of the dwelling of which it formed 
 part ; and inasmuch as in neither of the cases then 
 under appeal there was any such structural or practical 
 severance, he was of opinion that the claimants were 
 not entitled to vote. Mr. Justice Brett was of opinion 
 that, notwithstanding the exclusive use by each of the 
 claimants of a part of the house, the joint use by them 
 with the other tenants of the passages, staircases, and 
 other conveniences, prevented the exclusive use of the 
 part being an occupation of that part as a separate 
 dwelling ; and in this opinion Mr. Justice Willes appa- 
 rently concurred, though he rested his decision upon 
 the grounds already mentioned. Chief Justice Bovill 
 and Mr. Justice Keating were of opinion that the lan- 
 guage of the 61st section was enacted for the purpose of 
 getting rid of the difficulties which had arisen out of the 
 decisions in Cook v. Hv/mber (a) and in Henrette v. 
 Booth (6), which was supposed to conflict, but, in my 
 opinion, did not conflict with Cook v. Number (a), and 
 of avoiding for the future the determination of the 
 question in any particular case, whether " a part of a 
 house" should be treated as "a house." It would 
 
 1881. 
 
 Bbadlby 
 
 V. 
 
 Baylis. 
 
 MOKFEE 
 V. 
 
 Novis. 
 
 KiKBY 
 V. 
 
 BiFFEN. 
 
 (a) K.d:0.il3; S. C.U C. B. 
 
 N. S. 33. 
 
 (6) ffopw. <t Ph. 23 ; S. O. 15 
 C. B. N. S. 500. 
 
220 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlet 
 
 V. 
 
 Baylis. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiRBY 
 
 V. 
 BiPFEN. 
 
 appear that the words "occupied as a separate dwelling" 
 were regarded by the learned Judges (whose expressed 
 opinion I am now considering) as amounting to no more 
 than requiring that the occupation as a dwelling should 
 be separate as distinguished from joint, or, as intimated 
 by Mr. Justice Keating, as repeating the provision at 
 the end of the 3rd section, that no man should, under 
 that section, be entitled to be registered as a voter by 
 reason of being a joint occupier of any dwelling-house. 
 
 Where so many varying opinions were expressed, it 
 may perhaps be permitted to me to say that I regard 
 the occupation in both the two cases to have been an 
 occupation as tenant of a 'part of a house separately 
 rated to the poor rate, hut not occupied as a separate 
 dwelling, and therefore not sufficient to confer the right 
 of voting upon the occupier. This was apparently the 
 view taken by Mr. Justice Brett. 
 
 The case of Boon v. Howard (a) came before the Court of 
 Common Pleas shortly after Thompson v. Ward (b) and 
 Ellis V. Bwrch (c). In it the Judges were again equally 
 divided in opinion as to the interpretation to be given 
 to the words "occupied as a separate dwelling," Mr. 
 Justice Keating and Mr. Justice Denman adopting the 
 views expressed by Chief Justice Bovill and Mr. Justice 
 Keating in Thompson v. Ward (b) and Mils v. Burch (c), 
 while Mr. Justice Honyman concurred with Mr. Justice 
 Brett in adopting the views expressed by the latter in 
 the same cases. A question also arose in this case as to 
 the rating of the premises which were the subject of 
 occupation ; and upon this question also the learned 
 Judges were divided in opinion. 
 
 (a) 2 Hopw. & Colt. 208 ; S. C. L. 
 R. 9 C. P. 277. 
 (6) 1 Hopw. Js CoU. 530; S. O. 
 
 L. n. 6 C. p. 327. 
 
 (c) 1 Hopw. & Colt. 537 ; S. O. 
 L.R6C. P. 329. 
 
XLV VICTORIA. 
 
 221 
 
 In this state of judicial opinion, the statute 41 & 42 
 Vict. c. 26, was passed in 1878. By the 5th section of 
 that statute (sub-sec. 2), it was enacted that for the 
 purposes of the Act of 1867, the term " dwelling-house " 
 should "include any part of a house where that part is 
 separately occupied as a dwelling ;" and, by sub-sec. 4, 
 that this interpretation of " dwelling-house " should be 
 " in substitution for the interpretation thereof contained 
 in section 61 of the Representation of the People Act; 
 1 867, but not so as to affect any of the other provisions of 
 the said Act relating to rating ;" and it was also enacted 
 (sub-sec. 3) that, for the purposes of any of the Acts 
 referred to in that section (amongst which were included 
 the Act of 1832), where an occupier was entitled to the 
 sole and exclusive use of any part of a house, that part 
 should not be deemed to be occupied otherwise than 
 separately, by reason only that the occupier was entitled 
 to the joint use of some other part. We have to con- 
 sider the effect which these provisions have upon those 
 previously in force. The same section, sub-sec. 2, also 
 contains a reference to lodgings, to which it is not neces- 
 sary for me more particularly to allude, than to say that 
 the statute evidently intended to keep up the distinction 
 between the occupation franchise and the lodger franchise. 
 
 In delivering judgment in the several cases in respect 
 of which these appeals now before us have been brought, 
 Mr. Justice Denman is reported to have said that he 
 could not doubt that the object of the Legislature in 
 passing the Act of 1878 was not to confer a new fran- 
 chise or enlarge the definition of a " dwelling-house," 
 but to decide that for the future the view taken by Mr. 
 Justice Keating and himself of the meaning, under the 
 Act of 1867, of the word " dwelling-house," was the view 
 which the Legislature intended should be adopted, or, 
 
 1881. 
 
 Bkadley 
 
 V. 
 
 Batlis. 
 
 MOEPEE 
 V. 
 
 Novis. 
 
 KiRBY 
 
 V. 
 
 BlPFEN. 
 
222 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadley 
 
 V. 
 
 Baylis. 
 
 MOKFEE 
 V. 
 
 Novis. 
 
 KlEBY 
 
 V. 
 BlFPBN. 
 
 as he further expressed his meaning, that the expression 
 "separately occupied," was not to imply the occupation 
 of everything exclusively, but that it was sufficient if 
 that part of the occupation which was relied on as 
 giving the franchise was separately occupied as a 
 dwelling, whatever joint occupation there might be of 
 the staircase, wash-house, and other conveniences ; and 
 in the view so expressed by Mr. Justice Benman, Mr, 
 Justice Boioen expressed his concurrence. Whether 
 such views are in accordance with the true interpreta- 
 tion of the statute is what we have now to determine. 
 
 Omitting the reference to rating, the change in the 
 language interpreting the term " dwelling-house " is very 
 slight. Under the Act of 1867, it is to include "any 
 part of a house occupied as a separate dwelling;" 
 under that of 1878, " any part of a house separately 
 occupied as a dwelling." Is there any difference in 
 meaning between the expressions "occupied as a 
 separate dwelling," and " separately occupied as a 
 dwelling?" If this change in the definition of what 
 the term "dwelling-house" is to include had been 
 merely intended to remove a doubt which had arisen 
 from conflicting judicial decisions as to a previous 
 definition, we should expect to find some direct intima- 
 tion in the statute that such was the intention of the 
 Legislature; but no such intimation is to be found. 
 Again, had there been any such intention, we should 
 hardly have found such an apparent identity of mean- 
 ing in the two definitions. The inference which I draw 
 from the language of the later statute is, that it was not 
 the intention of the Legislature to explain the definition 
 given in the 61st section, but to enlarge it, so as to 
 make it include the meaning which the Chief Justice 
 and Mr. Justice Keating had attributed to that defini- 
 
XLV VICTORIA. 
 
 223 
 
 tion in Thompson v. Ward (a) ; and I think that such 
 is its true effect, though I regret that the intention was 
 not expressed in more clear language. Under the 
 former definition, the subject of occupation was to be 
 occupied as a separate dwelling ; in other words, it was 
 to have all the incidents of a separate dwelling, all the 
 necessary conveniences, including access to the street; 
 such incidents would be wanting if these conveniences- 
 were enjoyed only in common with others ; but if, under 
 the new definition, there is a separate occupation of the 
 subject matter of occupation, that is, of the room or 
 rooms occupied, and such subject matter is so occupied as 
 a dwelling, the terms of the definition are, as it appears 
 to me, satisfied, even though some of the incidents of a 
 dwelling may be enjoyed in common with others. And 
 this view of the interpretation of the definition given in 
 sub-sec. 2 of section 5 of the Act of 1878, is supported 
 by the provision in sub-sec. 3 of the same section, that 
 where an occupier is entitled to the sole and exclusive 
 use of any part of a house, that part shall not be deemed 
 to be occupied otherwise than separately, by reason only 
 that the occupier is entitled to the joint use of some 
 other part. 
 
 To this extent I assent to the conclusion at which 
 Mr. Justice Benman and Mr. Justice Bowen have 
 arrived as to the practical effect of the statute of 1878 ; 
 and I am of opinion that, in each of the three cases 
 now under consideration, there was an occupation of a 
 part of a house, and that such part was separately occu- 
 pied as a dwelling. But we have further to determine 
 the character of the occupation. Was the occupation 
 of each claimant that of a lodger or of a tenant, within 
 
 1881. 
 
 Beadlet 
 
 V. 
 
 Batlis. 
 
 MOBFBB 
 V. 
 
 Novis. 
 
 KiKBT 
 
 V. 
 BiPJj'EN. 
 
 (a) 1 ffopw. & Colt. 530 ; S. C. h. E. 6 C. P. 327. 
 
224 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Batms. 
 
 MOBFEB 
 V. 
 
 Novis. 
 
 KiRBY 
 
 V. 
 BiFFBN. 
 
 the true meaning of the 3rd section of the Act of 1867 ? 
 If his occupation was as a lodger, then, for the reasons 
 I have already assigned, he is not entitled to the fran- 
 chise as an occupying tenant, in which character the 
 several claims have been made. But how are we to 
 determine whether an occupier is a lodger or not ? In 
 my opinion, each case must depend upon its particular 
 circumstances ; and it is impossible to do more than to 
 lay down certain general rules for guidance, which must 
 be applied by those upon whom the duty devolves. I 
 can suggest no better rules than those which the Master 
 of the KoUs has mentioned. Adopting them, and having 
 regard to the decisions to which I have referred, and in 
 which the distinction has been drawn between a lodger 
 and a tenant who is not a lodger, I am of opinion, 
 though I cannot say that I express a very confident 
 opinion, under circumstances which afford so much 
 room for doubt, that the claimant in each of the first 
 two cases {Bradley in the one case and Morfee in the 
 other) occupied the room or rooms, which were in fact 
 occupied by him, in the character of a lodger, and not 
 in that of a tenant other than a lodger, and that con- 
 sequently in neither case was the occupation franchise 
 acquired. 
 
 But as regards the claimant in the third case, Kirby 
 V. Bifen, it appears to me that his occupation is that 
 of an occupying tenant, under sec. 3. It remains, how- 
 ever, to be considered whether the part of a house so 
 occupied by him was separately rated to the relief of 
 the poor, so as to satisfy the condition to that effect 
 required by the statutes. During the argument on 
 this case I felt considerable doubt upon the subject; 
 such doubts were, to some extent, founded upon the 
 provisions of the 7th section of the Act of 1867, but. 
 
XLV VICTORIA. 
 
 225 
 
 upon further consideration of that section, and having 
 regard to the 19th section of " The Poor Rate Assess- 
 ment and Collection Act, 1869," and the 14th section 
 of the already mentioned Act of 1878, I am of opinion 
 that, so far as the qualification of the claimant to vote 
 as an occupying tenant is dependent upon the premises 
 occupied by him being separately rated to the relief of 
 the poor, he is entitled to the franchise. The combined 
 effect of the two last mentioned sections is, in my 
 opinion, to make the provisions of previous statutes as 
 to rating practically inoperative, so far as they affect 
 the qualification necessary to entitle an occupying 
 tenant to the borough franchise. The claimant need 
 not be actually separately rated ; it is suiEcient if the 
 landlord is rated; but under the statutes referred tOj 
 he is to be considered as if he was separately rated, so 
 far as his right to the franchise is concerned. I have 
 already stated that he is, in my opinion, entitled to the 
 franchise, so far as the nature and character of his occu- 
 pation are concerned ; and I am consequently of opinion 
 that his name has been properly placed upon the list of 
 voters. 
 
 1881. 
 
 Bbadlky 
 
 V. 
 
 Baylis. 
 
 MORFSE 
 V. 
 
 Novia 
 
 KiRBY 
 
 V. 
 
 BiFFEN. 
 
 Brett, L.J., said. It seems to me that nothing could 
 be more difficult to construe, or more involved, than 
 these statutes; and that that difficulty arises from 
 an Act of Parliament having said that certain things 
 are what they, are not. 
 
 The question which arises here is, in reference to the 
 borough franchise, whether certain claimants are entitled 
 to be put on the register as householders, or whether 
 they are lodgers. 
 
 On the one side it was said that none of these claimants 
 were householders within the meaning of the statute ; 
 
226 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V 
 
 Batlis. 
 
 MORFEE 
 V. 
 
 Novis. 
 
 KiRBY 
 
 V. 
 
 BlFFEN. 
 
 and that, if any of them were householders, they were 
 not rated, or rateable, or to be deemed to have been 
 rated when, in fact, not rated, and that therefore, even 
 if householders, they ought not to be put upon the 
 register. On the other side it was said that they were 
 all householders, and that, even if some of them might 
 be lodgers, they were nevertheless householders, and 
 that some of these franchises overlapped each other. 
 I ventured to say at the time that I did not think that 
 any of the borough franchises in any of the statutes 
 overlapped each other; but, for the moment, I was 
 forgetful of a case in which a majority of the Court of 
 Common Pleas held that a "house" under the 2 Will. 4, 
 «. 45, and a " dwelling-house " under the 30 & 31 Vict. 
 c. 102, were franchises, which did, as it were, overlap 
 each other ; so that a man might be the occupier of a 
 house which would give him a vote under the statute 
 of William, and at the same time the inhabitant 
 occupier of the same house — a " dwelling-house " — 
 which would give him a vote under the statute of 
 Victoria. That, to a certain extent, is true. The 
 question arose in Tmvnshend v. The Overseers of St. 
 Marylebone (a), where it was held by the majority of 
 the Court that, if a man claimed for a dwelling-house, 
 and it was found that his occupation would not give 
 him a vote under the 30 & 31 Vict. c. 102, he might, 
 under that claim, support his vote by showing that he 
 was the occupier of a house which would give him a 
 right under the 2 Will. 4, c. 45. From that view I 
 dissented at the time. I thought that the descriptions 
 of the franchises in the two statutes were to be taken 
 to be descriptions of separate rights, and that if a person 
 claimed under one of those descriptions, and could not 
 
 (a) 1 Hnpw. & Colt. 606 ; S. C. L. R. 7 0. P. 143. 
 
XLV VICTORIA. 
 
 227 
 
 support his claim, he ought not to be allowed to qualify 
 himself by saying that he was entitled under the other 
 description. So far as my own mind goes, I confess 
 that I am of the same opinion still, not that if the case 
 were to come before me, sitting in this Court, I should 
 think it right to propose to overrule that decision, after 
 the time that it has been acted upon ; but, except in 
 that particular case, I think that it is impossible to say 
 that any of these franchises overlap each other. That 
 view seems to me entirely to answer the supposition 
 that people can be lodgers, and at the same time house- 
 holders, in respect of the same subject matter of occupa- 
 tion. These franchises appear to me to be two separate 
 and distinct qualifications. The question therefore is, 
 whether the claimants can properly be said to be house- 
 holders, 
 
 I wiU first eliminate cases which seem to me not to 
 depend at all on the 30 & 31 Viet. c. 102, viz., cases 
 where there is a structural separation, as in the case of 
 chambers in the Inns of Court, or flats in Victoria Street, 
 and which had been held to be separate tenements or 
 houses before the 30 &, 31 Vict. c. 102 was passed. 
 
 To begin, then, with the 30 & 31 Vict. c. 102, sec. 3 
 of that statute gives the franchise to any man who has 
 been for the stipulated period an inhabitant occupier 
 of a dwelling-house. Two matters are there enunciated. 
 First, there is the thing which he is to occupy, and 
 that thing is a "dweUing-house;" secondly, there is the 
 mode in which he is to -occupy it, and that is as " an 
 inhabitant occupier." A third matter is that he " has 
 during the time of such occupation been rated as an 
 ordi/na/ry occupier;" and a fourth, that he has paid 
 the rate. So that really there are four conditions : a 
 condition as to the house to be occupied, a condition as 
 
 1881. 
 
 BBADLE7 
 V. 
 
 Batlis. 
 
 Moufdi! 
 
 V. 
 
 Novis. 
 
 KlEBY 
 V. 
 
 BlPFEH. 
 
228 
 
 MICHAELMAS SITTINGS. 
 
 1881. to the mode of occupation, a condition as to being rated 
 
 MOKFEB 
 V. 
 
 Novis. 
 
 KiRBT 
 V. 
 
 BWEBN. 
 
 Bbadlby in respect of that occupation, and a condition as to the 
 Batlis. payment of such rate. Now with regard to the claimants 
 in the present case it seems to me that, both the thing 
 ,to be occupied, and the mode of occupation, must be 
 determined before you come to the question of i-ating ; 
 for if the thing which has been occupied is a lodging, 
 and the mode of occupation has been to occupy it as a 
 lodger, the question of rating under these statutes does 
 not arise ; for a lodger cannot by any law known in 
 this country be rated at all. Therefore the question 
 whether the claimant is a householder or lodger must 
 be decided before you come to the question of rating. 
 
 Under the 3rd section the claimant must have occu- 
 pied a "dwelling-house." If Parliament had left the 
 matter there, no difficulty could have arisen, because it 
 would have been impossible for anybody using the 
 English language in its ordinary sense to have said, 
 that, if a man occupies two rooms in a house, he occu- 
 pies a house. In the case of things which, though 
 built in a particular way, are built as houses, such as 
 Chambers in Inns of Court, or flats, these may properly 
 be called houses, because they are built as houses ; but 
 rooms in a house, which is built as a house, would 
 not be a house. With regard to the Inns of Court, 
 and to the buildings that are built in flats, the only 
 difficulty consisted in their being built with an inside 
 staircase. Supposing they had been built as Swiss 
 houses are built, with staircases outside, running up the 
 outside wall, each would then have been built as a 
 separate house, and would have wanted no communica- 
 tion with the other flats. You would have gone up the 
 outside staircase, common to everybody to go up, and 
 when you had got to the level of your own landing yo» 
 
XLV VICTORIA. 
 
 229 
 
 would have opened the door of your house, built as a 
 separate house, and having no communication with any 
 other. It would have been no less a separate house 
 than what is called a semi-detached house, or a house 
 in a street. The circumstance, however, of the stair- 
 cases being inside, under the same roof, no doubt pre- 
 sented a difficulty, until you came to consider that these 
 staircases were built only for the purpose of affording' 
 ingress and egress, and then it became apparent that it 
 made no difference whether they were inside or out, 
 and that the premises were really separate houses, and 
 so built. But then, as to houses not so constructed, 
 there is the 61st section, which has given rise to the 
 first difficulty in these cases. It enacts that " the term 
 ' dwelling-house ' shall include any part of a house occu- 
 pied as a separate dwelling and separately rated to the 
 relief of the poor." We need not consider the meaning 
 of that particular section, because it has been repealed. 
 We have now in sec. 5 of the statute of 1878 a 
 definition or explanation which replaces it, viz., that 
 " ' dwelling-house ' shall include any part of a house 
 where that part is separately occupied as a dwelling," 
 and then there is this further complication that " where 
 an occupier is entitled to the sole and exclusive use of 
 any part of a house, that part shall not be deemed to 
 be occupied otherwise than separately by reason only 
 that the occupier is entitled to the joint use of some 
 other part." With regard to the first clause, the words 
 are that " ' dwelling-house ' shall include any part of a 
 house where that part is separately' occupied as a 
 dwelling ;" but then, by the latter clause, the part of a 
 house is not to be prevented from being separately occu- 
 pied as a dwelling "by reason only that the occupier is 
 entitled to the joint use of some other part." Every 
 
 s 2 
 
 1881. 
 
 Bradlky 
 
 V. 
 
 Batlis. 
 
 "MORPEE 
 V. 
 
 Novia. 
 
 KiKBT 
 
 V. 
 BiFFEN. 
 
230 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlbt 
 
 V, 
 
 Batlis. 
 
 MOEJEE 
 V. 
 
 Novis. 
 
 KiKBY 
 
 V. 
 BiFFBN. 
 
 other consideration which is to determine whether the 
 part of a house is separately occupied as a dwelling 
 remains as before. It seems to me clear that that latter 
 clause was put in in order to meet the question of what 
 was called "structural severance." But the question 
 will still remain in each case, whether the part of a 
 house which a claimant occupies is separately occupied 
 as a dwelling-house. On the present occasion we have 
 not got to solve that difficulty, but, in order to show 
 what I mean, I will give an illustration. If a person 
 occupies two rooms which are not on the same floor, 
 but are separated by a staircase which is not demised 
 to him, and of which he has not the sole use, and in 
 one of those rooms he and his family sleep, and in the 
 other he and his family live, and take their meals by 
 day, it will to my mind be difficult to say whether he 
 occupies one room or the other as a dwelling. You do 
 not dwell in your bedroom ; you do not dwell in your 
 sitting-room ; you dwell in the two things jointly ; but 
 where those two things are separated by something 
 which does not belong to you, I doubt whether you 
 can be said to dwell in either of them. Certainly, as 
 it seems to me, it could not be said, if you slept on one 
 side of the street with your family, and occupied some 
 rooms on the other side of it for all other purposes, that 
 you dwelt in a house — you would be dwelling half in 
 one house, and half in another. Such difficulties as 
 that remain. In the schedule to one of these cases it 
 is stated that some of the persons occupy only a room 
 on one floor and some occupy rooms on different 
 floors; but the learned Revising Barrister has put 
 them all into the same schedule, saying that he con- 
 sidered this point immaterial. Then to my mind he 
 ought not to have mentioned it, because it is a well 
 
XLV VICTOniA. 
 
 231 
 
 understood rule not to put into a schedule any cases 
 that are not exactly similar to the principal case. He 
 has indeed asked no question about this of the Court, 
 nor indeed could he have done so, having put all the 
 cases in the same schedule. If they are not alike, he 
 ought not to have put them there. I think the Court 
 must assume them alike, so that on this point there 
 can be no decision. It must remain open. 
 
 We must therefore read this matter thus, that if a man 
 is an inhabitant occupier of part of a house separately 
 occupied as a dwelling, although there is another part of 
 the same house which he uses in common with others, 
 he is to be considered as occupying a separate dwelling. 
 
 Then besides the 3rd section of the Act of 1867, so 
 interpreted, there is the 4th section which gives the 
 lodger franchise, where the person "as a lodger has 
 occupied in the same borough separately and as sole 
 tenant for the twelve months preceding the last day of 
 July in any year the same lodgings, such lodgings being 
 part of one and the same dwelling-house." The firamers 
 of the Act of 1878, intending to make that clearer, say, 
 "'lodgings' shall include any apartments or place of 
 residence, whether furnished or unfurnished, in a dwell- 
 ing-house." So that, according to that, he is to be a 
 lodger who has occupied any apartments or place of 
 residence in a dwelling-house, such apartments or place 
 of residence being part of one and the same dwelling- 
 house. How that explains anything which has gone 
 before passes my comprehension. You are still left to 
 conjecture, what are " lodgings," and what is a " lodger." 
 
 Although in ordinary parlance, a " lodging " and a 
 "house" must be different things, which everybody 
 could comprehend, yet, when the Legislature says that 
 part of a house can be a house — which, in truth,, it 
 
 1881. 
 
 Bkadlet 
 
 V. 
 
 Baylis. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KlEBY 
 
 V. 
 BlFFEK. 
 
232 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Beadley 
 
 V. 
 
 Batlis. 
 
 MOBFEE 
 V. 
 
 Novis. 
 
 KiBBY 
 V. 
 
 BlFVEN. 
 
 cannot be — it then becomes possible that the same 
 thing may be the subject matter of two different quali- 
 fications, viz., occupation as a householder, and occupa- 
 tion as a lodger. The thing occupied may be the 
 same, namely, a room, and we must look to the mode 
 of occupying it in order to determine the qualification. 
 
 What then is the difference between the modes of 
 occupying a room, as a lodger, or as a householder ? 
 To occupy the room as a lodger you must be a lodger in 
 a house which is not your own ; you must be a lodger 
 in another man's house ; and, as my brother Cotton and 
 I had occasion to consider the other day (a), you must 
 be a lodger in his house, by lodging with him. There 
 Qannot be an exhaustive definition of what will make a 
 man a lodger, but it has been considered very much in 
 three cases — Pitts v. Smedley (b), Score v. Huggett (c), 
 Wansey v. Perlcins (d). In those cases the distinction 
 was made to turn upon the ownership of the key of the 
 outer door. In one case the owner of the house had the 
 key of the outer door, and resided in the house : — Held, 
 that a person who occupied rooms in that house was a 
 lodger with him. In another of those cases the owner 
 had let part of the house, reserving no actual control 
 over it, and did not keep for himself the key of the 
 outer door: — Held, that the person occupying the 
 part of the house so let occupied it as a householder 
 and not as a lodger. The third was a case where the 
 owner had the key of the outer door, but the person 
 who occupied the house had a key also : — Held, that 
 such person was a lodger. If you substitute in those 
 cases the consideration of the owner of the house 
 
 {a) Morton v. Palmer, 51 L. J. (c) 1 Lutw. 198 ; S. C. 7 M. dt 
 
 N. S. Q. B. D. 1. G. 95. 
 
 (6) 1 Lutw. 198 -,8.0.1 M. & (d) 1 Inaw. 252 ; S.0.1 M.is 
 
 G. 85. a. 151. 
 
XLV VICTORIA. 
 
 233 
 
 preserving a control over it, then the distinctions there 
 drawn will remain very good guides. If the owner of 
 the house reserves to himself a control over it (which 
 he does, if he resides in part of it, and gives only the 
 use of the passages and staircases to those to whom the 
 other parts are let, or, if he does not reside in it, but by 
 means of his servants performs duties in the house, or 
 undertakes a certain control over it), then, so long as he 
 does that, any person, who occupies only a part of the 
 house as his tenant, may be properly said to be a lodger 
 with him. But if the owner of the house has entirely 
 left it, and given up the actual occupation of it to other 
 persons, not reserving any part of the actual occupation 
 of it to himself, nor any control over any part of it, 
 then, although in truth those persons may be occupying 
 not a house, but only part of a house, they may, within 
 the definition of 41 & 42 Vict. c. 26, if other conditions 
 are fulfilled, be said to occupy a "dwelling-house." Cavil- 
 lers may say that such nice distinctions look exceedingly 
 like nonsense. I can only answer that, if Judges seem 
 to talk nonsense, it is because Parliament has written 
 nonsense. If a man remains in the house and lets off 
 two rooms, the person to whom he gives the exclusive 
 use of the two rooms is a lodger ; if he lets off the next 
 two rooms 1;o a second person in the same way, then he 
 has two lodgers ; and if two more to a third, then he has 
 three ; but if he lets off the remaining two, so as to let 
 off all the rooms, and leaves the house, preserving no 
 actual control over it, so that he is not to go into it, 
 either by his servants or himself, then those persons who 
 were before lodgers have by that fact become house- 
 holders. Although by their original agreement with 
 him they were lodgers, yet by the fact of his having 
 made arrangements with other people, by which the 
 
 1881. 
 
 Bbadley 
 
 V, 
 
 Batlis. 
 
 MOBPEB 
 
 v. 
 Novis. 
 
 KiKBT 
 V. 
 
 BlFffEN. 
 
234 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadley 
 
 v. 
 Batlis. 
 
 MOBFES 
 V. 
 
 Novis. 
 
 KiKBT 
 V. 
 
 BlITEN. 
 
 whole of the rooms have been let off, those persons 
 who were his lodgers have become householders. But 
 suppose that during the qualifying year one of those 
 lodgers leaves, and the owner thereupon (as assuredly 
 he must) resumes the control over that unlet part, 
 according to my view of the statutes, immediately by 
 that act of his those three persons left in the house, 
 who have been householders, become again lodgers. If 
 that be not a right interpretation of the statutes, it is 
 the fault of those who made these definitions. To my 
 mind it will be necessary, notwithstanding what we are 
 deciding in the present case, for Revising Barristers to 
 see in these cases whether during the whole qualifying 
 year the whole house has been occupied by persons, 
 under conditions which make them householders ; and 
 if during the year the whole house has not been so 
 occupied, and the owner has during a part of the year 
 had a control over it, then none of those persons have 
 been householders for the qualifying period. In one of 
 the sets of cases before us the whole house has been let 
 out in apartments during the whole period, the only part 
 which has not been let out being the staircase, which 
 the landlord, inasmuch as he has not demised it, has 
 reserved to himself. But the landlord himself has gone 
 away, and given up actual control over the house. 
 Therefore it seems to me that, under the definition of 
 " dwelling house " in 41 &; 42 Vict. c. 26, the persons 
 who occupy those apartments must be held to be 
 householders, and inhabitant occupiers of dwelling- 
 houses within the meaning of the statutes. 
 
 In the other two sets of cases, where the landlord has 
 reserved to himself a control over the house, the- persons 
 who occupy parts of that house are lodgers ; therefore, 
 they could not claim in the mode in which they have 
 
XLV VICTOKIA. 
 
 235 
 
 claimed, and inasmuch as the value was insufficient for 1881. 
 
 V. 
 
 Batus. 
 
 MoBIfEE 
 V. 
 
 Novis. 
 
 KiBBT 
 Y. 
 
 BiPPEN. 
 
 the lodger franchise, they cannot be put upon the bbadley 
 register at all. 
 
 With regard, then, to those persons who are thus 
 held to be lodgers the question of rating does not arise ; 
 but with regard to those whom we hold to be house- 
 holders it does, and it is quite as difficult as the other 
 question. By the 3rd section of the Act of 1867 these 
 persons must have been rated, and have paid their 
 rates. They have not been rated, and the Srd section 
 is not repealed. We are to see, therefore, whether, 
 although not rated, they are to be deemed to have been 
 rated. The first matter to be referred to on this point 
 was said to be contained in the 7th section. The first 
 part of that section does not seem to me to be material. 
 As regards separate houses, it did away with the power 
 given by the Small Tenements Act (13 & 14 Vict. 
 c. 99) to rate the owner, leaving the occupiers in such 
 cases liable to be rated. Then it deals with this parti- 
 cular case : " Where the dwelling-house or tenement 
 shall be wholly let out in apartments or lodgings not 
 separately rated, the owner shall be rated in respect 
 thereof to the poor rate." That was the part of the 
 section which gave rise to the case of Stamper v. The 
 Overseers of Sunderland {a). There the overseers of 
 Sunderland had rated the occupiers of separate rooms, 
 and those occupiers objected, or were supposed to have 
 objected, to being rated, the supposition, or the truth, 
 being, that they preferred not to be rated, and not to 
 have a vote, to being rated, and having a vote. It was 
 shown, I think, clearly in that case that if those persons 
 could be held to be lodgers in the ordinary acceptation 
 
 (a) L. R. 3 C. P. 
 
236 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bbadlet 
 
 V. 
 
 Baylis. 
 
 MOBFBE 
 V. 
 
 Novis. 
 
 KlRBY 
 V. 
 
 BiFFEN. 
 
 of the word, this enactment did not apply to them. If 
 they were mere lodgers in the ordinary sense of the 
 word, the owner was the only person who could be the 
 occupier, and this enactment was not wanted. It seems, 
 therefore, to apply to cases where separate rooms or 
 lodgings were in such a condition that (inasmuch as 
 the power to rate owners under the Small Tenements 
 Act was done away with) the occupiers would have 
 been liable to be rated, unless this clause had been put 
 in to protect them ; and it was held that it did protect 
 them, and that when they occupied parts of a house in 
 such a manner as would, but for this clause, have caused 
 them to be rated, they nevertheless should not be rated, 
 but that the owner should be rated instead of them, 
 they thereby losing the franchise. The whole Court 
 decided that they were not lodgers in the ordinary 
 sense, but persons who occupied tenements in such a 
 manner that they would have been rateable under the 
 statute of Mizdbeth, but that by this stipulation they 
 were protected. Two of the Judges thought, that, 
 although not lodgers in the ordinary sense, they might 
 be lodgers within the Act ; in other words, that every- 
 body occupying a part of a house who was not a house- 
 holder within the meaning of the Act would be a 
 lodger. It may be that that is a true view of these 
 statutes, and that, therefore, persons who occupy parts 
 of houses, and are not householders within the statutes, 
 must be lodgers, though of course whether they are 
 qualified as lodgers depends on other matters. If that 
 be so, then, as, according to the interpretation put by 
 the Act of 1878 upon the Act of 1867, more persons are 
 now householders than would have been householders 
 under the Act of 1867 read by itself, it seems to follow 
 that fewer persons would now be lodgers. 
 
XLV VICTOllIA. 
 
 237 
 
 However, according to the Act of 1867, these persons, 
 whom we hold to be occupiers of separate tenements, 
 ought, in order to acquire the franchise under sec. 3 of 
 that Act, to be rated, because, by the terms of that 
 section, unless they are rated, they cannot vote. But 
 then came the 32 & 33 Vict. c. 41, and by the 4th 
 section of that Act the vestry may, where the heredita- 
 ments are under a certain value, order that the owners 
 shall be rated instead of the occupiers. If the matter 
 had stood there, the occupier could not be put upon the 
 register; but the 19th section of that Act enacted as 
 follows : " The overseers in making out the poor rate 
 shall, in every case, whether the rate is collected from 
 the owner or occupier, or the owner is liable to the pay- 
 ment of the rate instead of the occupier,, enter in the 
 occupiers' column of the rate-book the name of the 
 occupier of every rateable Jiereditament, and such occu- 
 pier shall be deemed to be duly rated for any qualifica- 
 tion or franchise as aforesaid." But then, supposing 
 that the overseers did not put the name of the occupier 
 upon the rate-book, under that part of the section he 
 could not be deemed to be rated. But then there came 
 this proviso : " Provided that any occupier whose name 
 has been omitted shall, notwithstanding such omission 
 and that no claim to be rated has been made by him, 
 be entitled to every qualification and franchise depend- 
 ing upon rating, in the same manner as if kis name had 
 not been so omitted." Therefore the negligence of the 
 overseer is not to alter the rights of the occupier, who, 
 although not rated, is to be deemed to be rated. But 
 then some difiiculties seem to have arisen as to whether 
 certain persons would be within that section, and sec. 14 
 of the Act of 1878 was passed to meet some such 
 suggested difficulty. I do not know what the exact 
 
 1881. 
 
 Bkadiey 
 
 V. 
 
 Batlis. 
 
 MOBFEE 
 V. 
 
 Novia. 
 
 KiKBT 
 
 V. 
 BlFFEN. 
 
238 
 
 MICHAELMAS SITTINGS. 
 
 1881. difficulty was (a), but, as I read the enactment. 
 
 V. 
 
 Batlis. 
 
 MOBFEE 
 
 V. 
 
 NOTIS. 
 
 KiBBY 
 
 T. 
 BiFFEN. 
 
 Bbadley the stipulation in the 19th section of the Act of 
 1869 is to be applicable to all cases where the 
 owner is rated instead of the occupier, i.e., where the 
 owner is rated, and where, if it had not been for the. 
 32 & 33 Vict. c. 41, the occupier would have been rated. 
 Therefore in the case oi^Kirby v. Biffen, where we hold 
 that the claimants are occupiers, it seems to me to be a 
 case in which, upon the assumption of the vestry having 
 made an order, the owner would be a person to be rated 
 instead of the occupier. Then, if that be so, whether 
 the occupier's' name has been put in the rate-book or 
 not, the occupier who is not rated is to be deemed to 
 have been rated ; and the payment of the rate by the 
 landlord is to be deemed a payment by him on behalf 
 of the occupier. Therefore in that case, inasmuch as we 
 hold the claimants to be separate occupiers of a separate 
 dwelling-house, and also that they have fulfilled the con- 
 dition of having been rated and paid the rate, it follows 
 that they are entitled to be placed upon the register. 
 
 The result of our decision renders it unnecessary to 
 determine another question that has been raised, viz., 
 whether, where a person has claimed as an occupier, the 
 Revising Barrister, if he should be of opinion that he is 
 not an occupier but a lodger, can put him on the regis- 
 ter as a lodger. I should think that there is quite as 
 much difficulty about that question as any of the others, 
 but on the present occasion we have not to decide it. 
 
 Cotton, L.J., said. I agree with the other members 
 
 (a) The difficulty or doubt, to 
 which the section cited in the 
 text (see. 14 of the 41 & 42 Tict. 
 c. 26) refers, arose out of the 
 divergence of judicial opinion in 
 Cross V. Alsop, Hopw. tfc Colt. 444 ; 
 S. C. L. R. 6 0. P. 315, and 
 
 Smith V. Segkia, L.R.WQ.B. 422. 
 It will be observed that, although 
 upon the argument in the Court 
 of Appeal sec. 14 was briefly cited 
 [ante, p. 201), these cases were not 
 referred to. 
 
XLV VICTORIA. 
 
 239 
 
 of the Court, and if this were not a case of such general 
 importance I should say nothing more ; but, looking at 
 the importance of the case, I think it necessary to state 
 shortly the view which I entertain. 
 
 The question we have to consider is this — ^Whether 
 the claimants in these appeals, under the Representation 
 of the People Act, 1867, as amended by the Act of 1878, 
 are entitled to the franchise as householders ? 
 
 The Act of 1867 gives, by two sections, two different 
 franchises, both arising from the occupation of part of 
 a house, that is to say, a householder franchise and a 
 lodger franchise, the lodger franchise being given by 
 the 4th section to a person who "as a lodger has 
 occupied separately and as sole tenant, for the twelve 
 months preceding the last day of July in any year, the 
 same lodgings, such lodgings being part of. one and the 
 same dwelling-house." The 3rd section gives to " in- 
 habitant occupiers, as owners or tenants " of a dwelling- 
 house, the household franchise. 
 
 There was a definition of " dwelling-house " in sec. 61 
 of the Act of 1867, which gave rise to considerable 
 difficulties, and sec. 5 of the Act of 1878, with one 
 exception, deals only with the definition of the thing 
 which is to be occupied in order to give the house-, 
 hold franchise. , It removes the difficulty in some 
 cases as to a person who occupies part of a house sepa- 
 rately, and who has a joint use of another part of it. 
 I will not deal with that, as it is unnecessary to do so ; 
 but, independently of that, it is simply a definition of 
 what may be a house for the purpose of entitling the 
 occupier to the franchise as a householder j and, to 
 remove the difficulty as to the necessity of some struc- 
 tural severance in the part of a house which is occu- 
 pied by a person who claims to be a householder, it, in 
 
 1881. 
 
 Bkadlet 
 
 V. 
 
 Batlis. 
 
 MOEFEE 
 V. 
 
 Novis. 
 
 KlRBT 
 V. 
 
 BiFFEN. 
 
240 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Batlis. 
 
 MOSFEE 
 V. 
 
 Novia. 
 
 KlBBY 
 T. 
 
 BiFPBN. 
 
 effect, provides that if a man occupies part of a house, 
 even though there is no structural separation, he may 
 be entitled to the household franchise, if otherwise lie 
 performs the conditions of the statute. The section 
 defines the thing which may give the occupier of it the 
 household franchise ; but the mode of occupying it is 
 to be dealt with under the previous Act. 
 
 The first question we have to consider is this — 
 Whether a man who is a lodger, and in that character 
 occupies part of a house, has a right to say, " although 
 I am not entitled to the franchise as a lodger, I am 
 entitled to it as a householder ?" That, I think, cannot 
 be the fair construction of the Act of Parliament. In 
 my opinion, if a man is a lodger, he cannot come under 
 sec. 3 of the Act of 1867, and be treated as a house- 
 holder in respect of the same thing which he occupies as 
 a lodger. It is true that a lodger may be a tenant, and 
 is recognised as a tenant in sec. 4, because the words 
 are "as a lodger has occupied in the same borough 
 separately and as sole tenant .... the same lodgings." 
 And in sec! 3, sub-sec. 2, the words are " an inhabitant 
 occupier, as owner or tenant, of any dwelling-house 
 within the borough." But it will be remembered that, to 
 entitle a man to the lodger franchise, the thing which he 
 occupies, as a lodger, must be of a particular value. Is 
 it probable that that which, when occupied as a lodging 
 must be of a particular value to give the lodging 
 franchise, can in respect of the same occupation as a 
 lodger give the household franchise, although it is not 
 of that value, but of less value ? Besides, in sec. 5 of 
 the Act of 1878, not only is there a new definition of 
 "house" but there is a definition — not of lodger, but of 
 "lodgings." "The term ' lodgings ' shall include any 
 apartments or place of residence, whether furnished or 
 
XLV VICTORIA. 
 
 241 
 
 unfurnished, in a dwelling-house." That in my opinion 
 shows that the lodger franchise was to be continued, 
 independently of the householder franchise, and it also 
 shows that the thing may be occupied by a lodger as 
 lodgings, even although it comes within the definition 
 which has already been given of that which constitutes a 
 house for the purpose of the household franchise. 
 
 My opinion therefore is, that you must construe sec. 3 
 of the Act of 1867, as giving the franchise to the in- 
 habitant occupier of a house, who occupies it otherwise 
 than as a lodger ; and if you find that a man has in 
 fact occupied the thing as a lodger, he must make out 
 that he is entitled to the frauchise under the lodger 
 clause, and he is not entitled to have it under the 
 householder clause. 
 
 As this is my opinion, what we have to consider in 
 the several cases here is whether the different claimants 
 are lodgers, or whether they are householders within 
 the meaning of the Act. Of course in what I have said 
 I am not dealing with the question of a man being 
 entitled to the household franchise under the old Re- 
 form Act ; but I am simply dealing with the question 
 of a person who has claimed the franchise by reason of 
 his occupation of that which is within the meaning of 
 the Act of 1878 a house, that is, an imaginary or 
 statutory house. 
 
 Now, what is a lodger ? I do not intend to try to 
 give that which will be an exhaustive definition of a 
 lodger. I have had to consider it several times in this 
 Court, and, in my opinion, there is involved in the 
 term " lodger " that the man must lodge in the house 
 of another man and lodge with him. With respect to 
 lodging in the house of another man there is no diffi- 
 culty about that ; what constitutes his lodging with the 
 
 1881. 
 
 Bbadley 
 
 V. 
 
 Baths. 
 
 MOBFEB 
 V. 
 
 Novis. 
 
 KiRBT 
 
 V. 
 
 BlFFEN. 
 
242 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Beadlet 
 
 V. 
 
 Baths. 
 
 MOEFEB 
 V. 
 
 Novia. 
 
 KiBBY 
 V. 
 
 BiFFBN. 
 
 landlord is the difBculty. In my opinion it is not 
 necessary that the person with whom he lodges, that is, 
 his immediate landlord, should live in the house, to 
 make him a lodger. Nor is it necessary that the 
 immediate landlord should have the exclusive control 
 over the key of the outer door. But in my opinion 
 some control over the house must be exercised by the 
 person in whose house a man lives, to make him a 
 lodger. There may be an infinite variety of cases which 
 may occur, and to attempt to exhaust them, in my 
 opinion, would be futile. What we have to do here is, 
 to see whether, having regard to the facts which are 
 stated, it can be said that in these cases the claimants 
 are, or are not, lodgers. 
 
 Here in the two first cases there is very clear control 
 retained by the immediate landlord. In the second 
 the landlord lives in the house, and occupies the whole 
 of it excepting two rooms, in which the claimant lives. 
 In my opinion, there can be no doubt that this claimant 
 is a lodger in the house of the other man. In the other 
 of these two cases it is found that the immediate land- 
 lord does exercise a control over the whole house ; and, 
 as this is so, in my opinion, in both those cases the 
 claimants are lodgers ; they occupy parts of the houses 
 as lodgers, and therefore they are not entitled to be put 
 on the register as householders. 
 
 The third case seems to me to be different. It is 
 found that the immediate landlord does not live in the 
 house, that he has let all the rooms in the house, though 
 he has not let the staircase; but it is in accordance 
 with the usual custom not to let the staircases, but to 
 give a right to the tenants of the several rooms to use 
 the staircases in common. This however is found : the 
 immediate landlord retains an obligation to do all the 
 
XLV VICTORIA. 
 
 243 
 
 painting and repairs, and pays all rates and taxes, but, 
 "save as aforesaid, he does not, by himself or his 
 servants, retain the control or dominion over the house." 
 In my opinion the fact that he does the painting and 
 repairs is not sufficient to enable him to say that he 
 exercises such a control over the house as to make 
 those who are living there lodgers in his house. There- 
 fore in this case I am of opinion that the claimant is 
 entitled to claim the household franchise so far as the 
 portion of his occupation is concerned. The difficulty 
 in his so claiming is that he was not rated, and there 
 is a provision in the 3rd section of the Act of 1867 that 
 " during the time of such occupation " he must have 
 " been rated as an ordinary occupier in respect of the 
 premises so occupied by him within the borough to all 
 rates (if any) made for the relief of the poor in respect 
 of such premises." My brother Brett has gone so fully 
 through the various sections which bear on this rating 
 question, that I do not intend to go over the same 
 ground again. It is sufficient for me to say that sec. 
 14 of the Act of 1878 does make sec. 19 of 32 & 33 
 Vict. c. 41 general ; and we must deal with the matter 
 as if the claimant in this case had been rated, and 
 payment of the rates by the landlord is to be treated as 
 payment by the tenant, and sufficient to satisfy sec. 3 
 of the Act of 1867. 
 
 My opinion, therefore, is that the claimant in the 
 third appeal is entitled to be put on the register as a 
 householder. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Baylis. 
 
 MORFEB 
 V. 
 
 Novis. 
 
 KiRBT 
 
 V. 
 BiPPEN. 
 
 LiNDLEY, L.J. In order to decide these cases, the 
 following statutes have to be construed and applied, 
 viz. : — The Eepresentation of the People Act, 1867 (30 
 & 31 Vict c. 102), ss. 3, 4, 7, 61 ; Poor Rate Assessment 
 
244 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Eatlis. 
 
 MORFEE 
 V. 
 
 Novis. 
 
 KlEBT 
 
 V. 
 BlFFEN. 
 
 Act, 1869 (32 & 33 Vict. c. 41), ss. 3, 4, 19; Parlia- 
 mentary and Municipal Eegistration Act, 1S78 (41 & 
 42 Vict. c. 26), SR. 5, 14. Of these statutes, the first 
 and third are in pm^i materid, and relate to the repre- 
 sentation of the people and to the registration of voters. 
 The second is a Poor Rate Assessment Act, modifying 
 the rating clauses of the first Act, but not otherwise 
 affecting it. The above enactments can be best studied 
 by being divided into two groups, as follows : — Group 1. 
 (Qualification group) : 30 & 31 Vict. c. 102, ss. 3, 4, 
 61 ; 41 & 42 Vict. c. 26, s. 5. Group 2. (Rating 
 group) : 30 & 31 Vict. c. 102, s. 7 ; 32 & 33 Vict. 
 c. 41, ss. 3 and 19 ; 41 & 42 Vict. c. 26, s. 14. 
 
 The effect of the first group of sections is this : — 1st. 
 Two new classes of voters are created, viz. : — 
 
 (1.) The occupier class, who must be rated to the 
 poor, but whose tenement may be of any value. 
 
 (2.) The lodger class, who need not, and, indeed, 
 cannot be rated, but whose lodging must be worth £10 
 a year, unfurnished. 
 
 A careful study of the Acts of 1867 and 1878 shows, 
 I think, conclusively, that these two classes are intended 
 to be kept distinct ; but no definition of " occupier " or 
 of " lodger " is given, although there is a description of 
 the tenement which an occupier must have, and of the 
 lodging which a lodger must have. 
 
 The tenement which an occupier must have is 
 described as a "dwelling-house" (1867, s. 3), which, by 
 the Act of 1878, s. 5, includes any part of a house 
 where that part is separately occupied as a dwelling. 
 
 The lodging which a lodger must have is described 
 in the Act of 1867, s. 4, as a lodging, being part of a 
 dwelling-house, which, by the Act of 1878, b. 5, includes 
 "any apartments or place of residence, furnished or 
 
XLV VICTORIA. 
 
 245 
 
 unfurnished, in a dwelling-house;" and such lodging 
 must, by the Act of 1867, s. 4, be occupied by the 
 lodger separately and as sole tenant. 
 
 These descriptions have much in common ; they both 
 apply to persons who, in some sense, are tenants ; they 
 both apply to one or more rooms in one house, and 
 they both require separate occupation. Moreover, 
 " lodging " implies dwelling, so that if attention is only 
 paid to the room occupied, and to its separate occupa- 
 tion as a dwelling, no distinction can be found between 
 what is required to confer the franchise on the occupier 
 of part of a house, and what is required to confer the 
 franchise on a lodger. 
 
 Value makes the difference in some cases, but not in 
 all ; a " lodging " must be of the clear yearly value, if 
 let unfurnished, of £10 or upwards. From this it 
 follows : — (1.) That one or more rooms in a house, 
 separately occupied by the same person, and of the 
 value of £10, unfurnished, may confer either the one 
 franchise or the other on their occupier. (2.) That 
 the same rooms, if not of this value, cannot confer 
 the lodger franchise, but may confer the occupier 
 franchise. 
 
 I proceed now a step further. The Act of 1867, sec. 
 3, requires the occupier to occupy as " owner or tenant ; " 
 and the same Act, sec. 4, requires the lodger to occupy 
 separately '- and as sole tenant." But the occupier must 
 also occupy separately by the Act of 1878, sec. 5 ; so 
 that, as far as separate occupation by a tenant or lodger 
 is concerned, there is no difference between the two 
 classes of voters. 
 
 The foregoing examination of the sections now under 
 consideration leads to two conclusions, viz. : — (1.) That 
 the two classes of voters are contrasted, and are intended 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Batlis. 
 
 MOEFEE 
 V. 
 
 Novis. 
 
 KiBBY 
 
 V. 
 BlPFEN. 
 
 T 2 
 
246 
 
 MICHAELMAS SIITINGS. 
 
 1881. 
 
 Bkadley 
 
 V. 
 
 Baylis. 
 
 MOMFEE 
 V. 
 
 Novis. 
 
 KlEBT 
 V. 
 
 BlFFEN. 
 
 to be kept distinct ; and (2.) That when dealing with 
 tenants or lodgers occupying one or more rooms of one 
 and the same house, the only difference to be found 
 between them is the difference, if any, between a 
 person occupying as tenant and a person occupying as 
 lodger. 
 
 I pass now to the group of rating enactments, in 
 order to discover what light, if any, they throw on the 
 question. The Act of 1867, ss. 3 and 61, required the 
 occupier to be rated to the poor, and his tenement to 
 be separately rated ; and where a house was wholly let 
 out in apartments or lodgings not separately rated when 
 the Act passed, the owner of the house was the person 
 to be rated, and not the occupiers of the apartments or 
 lodgings (see sec. 7, and Stamper v. Overseers of Sun- 
 derland (a)). 
 
 The 61st section of the Act of 1867 is repealed by 
 sec. 5 of the Act of 1878 (b) ; and sec. 7 of the Act of 
 1867 is greatly modified by ss. 3 and 4 of the Act of 1869 
 (32 & 33 Vict. c. 41) ; for by ss. 3 and 4 of this Act, the 
 owner of a house, let out in apartments of certain 
 specified values, may become the person liable to pay 
 the rates, which would otherwise be payable by their 
 occupiers. Moreover, by sec. 19 of the same Act, as 
 modified by sec. 14 of the Act of 1878 (41 & 42 Vict. 
 c. 26), whenever a rate is collected from the owner or 
 occupier, or whenever the owner is liable to the pay- 
 ment of the rate instead of the occupier, the name of 
 the occupier is to be entered in the rate-book, and he 
 is then to be deemed to be duly rated for the purposes 
 of the electoral franchise, and the omission of his name 
 
 {a) L. R. 3 C. P. 388. 
 
 (b) The int erpi'etation of " dwel- 
 ling-house " in' sec. 61 is the only 
 part of the section that is thus 
 
 repealed, sec. 5 of the Act of 1878 
 not affecting to deal in any way 
 with the rest of the section. 
 
XLV VICTORIA. 
 
 247 
 
 from the book does not disqualify him. Whether, there- 1881. 
 
 V. 
 
 Batlis. 
 MoEB'Ea 
 
 V. 
 
 Novis. 
 
 KlEBY 
 
 V. 
 BiFFEN. 
 
 fore, the occupier of a room in a house pays the rate Bradley 
 of the room, or whether his landlord pays it, the occu- 
 pier is, for the purpose of the franchise, sufficiently 
 rated if his name is entered in the book ; but his name 
 ought not to be so entered, unless the room he occupies 
 is a rateable hereditament. A mere lodger, however, is 
 not, and never was, rateable in respect of his lodgings ; 
 the occupation by a lodger of a lodging not being within 
 the Poor Eate Acts. The group of rating sections, 
 therefore, point to the distinction between occupation 
 as a tenant rendering him liable to be rated, and occu- 
 pation as a lodger. But what this distinction is cannot 
 be gathered from the language of the statutes them- 
 selves. 
 
 The distinction, then, between tenants who are not 
 lodgers and tenants who are lodgers, must be discovered 
 from other sources than the statutes, and it is extremely 
 difficult to draw the line between them. At the same 
 time, the word " lodger'' involves the idea of lodging 
 with some one else from whom he hires his lodging ; 
 whilst the word "tenant" does not involve, although 
 it does not exclude, this idea ; and this difference gives 
 the clue to the distinction which the statutes have 
 made. Taking this difference as a guide, it appears to 
 me that, where a house is wholly let out in unfurnished 
 apartments, separately occupied by tenants, and their 
 landlord does not reside in the house, and has no ser- 
 vant in the house to look after it for him, the tenants 
 are rateable and are not lodgers ; whilst, on the other 
 hand, where a house is let out in unfurnished apart- 
 ments to tenants, and their landlord resides in the 
 house, or has a servant in it, to look after it for him, 
 then it appears to me that such tenants are not rateable 
 
248 
 
 MICHAELMAS SITTINGS. 
 
 1881. 
 
 Bradley 
 
 V. 
 
 Batlis. 
 
 MOKEEE 
 V. 
 
 Novis. 
 
 KlEET 
 
 V. 
 BlPPEN. 
 
 and are lodgers. This is the best conclusion I can draw 
 from the numerous decisions relating to this question^ 
 and from the enactments to which I have more par- 
 ticularly referred ; and, applying this test to the three 
 cases before us, I think the decision of the Court below 
 ought to be affirmed in Kirhy's case, and reversed in 
 Bradley's case and Morfee's case. 
 
 Judgment accordingly. 
 
 Solicitors — For Appellant Bradley, JR. G. Green. 
 
 For Eespondent Baylis, Baylis & Pearce. 
 For Appellant Morfee, TaTnplin, Tayler d 
 
 Joseph. 
 For Respondent Novis, S. F. Langham. 
 For Appellant Kirhy, Harvey, Oliver & 
 
 Gapron. 
 For Respondent Biffen, S. Price. 
 
XLV VICTORIA. 249 
 
 NuTH, Appellant ; Tamplin, Respondent. 
 
 AT a Court held before the Revising Barrister ap- 1881. 
 Nov. 24 
 
 pointed to revise the list of voters for the borough of Dec. 16.' 
 Marylebone, the appellant, Edward Nuth, of No. 20, seo. 23 of 41 
 Lady Somerset Road, in the parish of St. Pancras, gg ^hich' °" 
 claimed under sec. 4 of the Representation of the ™*!^«s ^}}^ 
 
 ^ declaration 
 
 People Act, 1867 (30 & 31 Vict. c. 102), in due form to annexed to 
 
 the claim of a 
 
 have his name inserted in the list of voters for the said person claim- 
 
 irg to vote 
 
 borough as a lodgar. as a lodger. 
 
 The claim, which, with the accompanying declara- poses of re- 
 tions, was in the Form H, No. 2, in the schedule to the Jaci^l^ence 
 Parliamentary and Municipal Registration Act, 1878 "atUmTs^not 
 (41 & 42 Vict. c. 26), as adapted to the case of a new yestrioted in 
 
 ^ *■ its application, 
 
 lodger claimant, was dated the 9tli of August, 1881, so aa to apply 
 
 only to 
 
 and duly witnessed, and was duly published by the claimants on- 
 
 n 1 •! • 1 r n -rt • it ^^® existing 
 
 overseers oi the said parish of 8t Fancras in the list register ciaim- 
 
 n 1 1 1 • , ijiff affain 
 
 of lodger claimants. under sec 22 
 
 The appellant did not appear personally in support Jhe'^same* ° 
 of his claim, nor was evidence of any kind tendered in l°dgmgs, but 
 
 •' applies gene- 
 
 support of it. rally to all 
 
 lodger claim- 
 No formal objection in writing to the claim was made ants. 
 
 under the provisions of sec. 39 of the Parliamentary 
 
 Registration Act, 1843 (6 & 7 Vict. c. 18), by or on 
 
 behalf of any person whose name was on the list of 
 
 voters for the borough. 
 
 It was contended on behalf of the appellant, that 
 
250 MICHAELMAS SITTINGS. 
 
 1881. sec. 23 of 41 & 42 Vict c. 26 applies to all lodger claim- 
 Ndth ants, as well those who claim in respect of lodgings for 
 Tam^lin. *^® ^^^* ^i'^s under sec. 4 of the Kepresentation of the 
 People Act, 1867, as those who, being already on the 
 list of parliamentary voters in respect of lodgings, 
 claim to be placed on the list of voters under sec. 22 
 of 41 & 42 Vict. c. 26 in respect of the same lodgings, 
 and that the claimant was entitled to have his name 
 inserted in the list of voters for the borough of Mary- 
 lebone as a lodger, without any further evidence being 
 adduced in support of his claim other than that fur- 
 nished by the declaration. 
 
 The Revising Barrister decided that sec. 23 of 41 & 
 42 Vict. c. 26 did not apply to the case of persons 
 claiming only under sec. 4 of 30 & 31 Vict. c. 102, and 
 who did not claim under sec. 22 of 41 & 42 Vict. c. 26, 
 to be placed on the list of voters as lodgers ; and that 
 it was necessary for a person so claiming, whether 
 objected to or not, to appear either himself or by his 
 agent, and to produce evidence in support of his claim 
 other than that (if any) afforded by the declaration, and 
 he accordingly disallowed the claim of the appellant. 
 
 Due notice of appeal was given, and the Revising 
 Barrister named George Tamplin, the returning officer 
 for the borough, respondent. 
 
 If the Court should be of opinion that the decision 
 was wrong, the register was to be amended by inserting 
 the name of the appellant. 
 
 Bompas, Q.C., for the appellant. The question in 
 this case is, whether sec. 23 of 41 & 42 Vict. c. 26, 
 which makes the claim of a lodger primd facie evidence 
 of his qualification, applies generally* to all lodgers, or 
 whether it is restricted to those lodgers, who, having 
 
XLV VICTORIA. 251 
 
 been on the register of the previous year, have claimed 1881. 
 again in respect of the same lodgings. It is submitted nuth 
 that it applies generally to all lodgers. There is nothing tampun. 
 unreasonable in this, as will be seen on considering what 
 the scheme of registration is, in regard to claimants 
 who are not lodgers. In counties a freeholder whose 
 claim is not objected to, gets upon the register with- 
 out proving his claim. If his claim be in due form, the 
 overseers are not justified in omitting him from the list 
 of voters ; but, if he be not entitled to vote, their course 
 is to enter him upon their list, and to object to him. 
 But in boroughs, so far as regards householders, the 
 overseers themselves make out the lists of voters, and, 
 in doing so, they omit the names of any householders, 
 who in their judgment are not entitled to be entered 
 there. The fact, therefore, of having been omitted by 
 the overseers is regarded prima fade as an objection to 
 the householder claimant ; and accordingly the Legis- 
 lature has required that any one in that situation should 
 prove his qualification. A lodger claimant, on the other 
 hand, stands in a situation which is entirely difierent. 
 The Legislature has not required the overseers to make 
 out any general list of lodger voters, inasmuch as the 
 overseers have not the means of doing so. The lodger 
 claimant, therefore, when he claims, differs from the 
 householder claimant in this, that he is not a person 
 whom the overseers have omitted, and consequently not 
 a person against whom there exists any primd facie 
 objection. The Act of 1867, when creating the lodger 
 franchise, required by sec. 30 that the claim should be 
 in a special form (a), accompanied by a declaration, 
 which had to be attested by a witness. Looking to the 
 
 (a) Form No. 1 in schedule (G) of SO & 31 Vict. c. 102. 
 
252 MICHAELMAS SITTINGS. 
 
 1S81. nature and contents of that declaration, it is difficult to 
 
 Noth understand, unless the declaration was intended to be 
 Tam^lin p^i'fnd facie evidence of the qualification, with what 
 object it was required to be made, or why its making 
 was required to be attested. This gave rise to a doubt 
 among Revising Barristers, as to whether, or not, they 
 were to treat the declaration as prima facie evidence 
 of the qualification, and accordingly a diversity of 
 practice arose in the Revision Courts in reference to 
 the mode of carrying out this enactment. But then 
 came the amending Act of 1878 which, being passed in 
 great measure for the purpose of removing doubts that 
 had arisen under previous Acts, has, it is submitted, 
 removed (among other doubts) the doubt upon this 
 subject. Instead of the form of claim given by the 
 Act of 1867 the Act of 1878 has substituted a new 
 form of claim. Form H, No. 2 in the schedule, which 
 is capable of being adapted, either to the case of lodgers 
 claiming for the first time, or to the case of lodgers 
 already on the register, who claim again in respect of 
 the same lodgings. To satisfy the requirements of that 
 form it is necessary that the lodger claimant and his 
 witness should each make a declaration, and any false 
 statement in either of these declarations renders the 
 offender liable under sec. 25 to severe punishment, the 
 offence being punishable as a misdemeanour with fine 
 or imprisonment. The terms of sec. 25 are perfectly 
 general, and it will hardly be contended on the other 
 side that it does not extend to declarations by lodgers 
 claiming for the first time, as well to those made by 
 lodgers already on the register. 
 
 [BowEN, J. If that be admitted, the other side will 
 have to contend that the words "claiming to vote 
 
XLV VICTORIA. 253 
 
 as a lodger" in sec. 23 have a different meaning from 1881. 
 the words " claim to vote as a lodger" in sec. 25.] noth 
 
 Necessarily they will be driven to that contention. 
 Again, sec. 23 was not wanted for the benefit of those 
 lodger claimants, who, being already on the register, 
 claim under sec. 22 in respect of the same lodgings, inas- 
 much as that section requires the overseers to publish 
 all such claimants upon the list of voters. Being pub- 
 lished upon the list of voters, not only must they be 
 objected to in due form, but the objector must, under 
 section 28, sub-s. 10, make out a primd facie ground 
 for his objection, otherwise their votes cannot be im- 
 peached. If, on the other hand, a priTnd facie ground 
 of objection be made out, they must then be prepared 
 to prove their case fully, and could not rely on a mere 
 primd facie case. It is true that sec. 23 stands be- 
 tween two sections (ss. 22 and 24), which both relate to 
 lists of voters, but, on looking through the sections of 
 this Act of Parliament, it will be seen that it deals with 
 a variety of subjects without attempting to group them 
 in any scientific order. As regards authority, it may be 
 right to mention that there are some dicta of Lord 
 Coleridge, G.J., and Benman, J., in the case of Pickard 
 V. Baylis (a), which are apparently adverse to the 
 appellant's contention ; but, when it is considered what 
 the point involved in Pickard v. Baylis {a) was, it will 
 be apparent that those dicta were not necessary to the 
 decision at which the Court arrived. 
 
 E. Clarke, Q.C., for the respondent. The appel- 
 lant's contention, if successful, would, it is to be feared, 
 
 (a) Ante, p. 98; S. C. L. R. 5 0. P. D. 235. 
 
 V. 
 
 Tamplin. 
 
254 MICHAELMAS SITTINGS. 
 
 1881. afford great opportunities for manipulating the lists by 
 NuTH the concoction of fraudulent lodger claims. It would 
 Tamplin. evidently place the new lodger claimant in a position of 
 exceptional advantage as compared with every other 
 class of voters. In all other cases, where the claim is 
 not required in the first instance to be proved, as, 
 for example, in the case of the county claimant, and 
 also in that of the lodger claimant already on the 
 register, claiming again in respect of the same lodgings, 
 careful provision has been made by the Legislature for 
 a machinery of written notices of objection, with ample 
 opportunity for testing the sufficiency of the claim. 
 But in the case of the new lodger claimant no such 
 machinery exists. His claim need not be made until 
 the 2oth of August, or published until the 1st of Sep- 
 tember, when the time for written objections has gone 
 by. It is true that sec. 30 of 30 & 31 Vict. c. 102, incor- 
 porates sec. 39 of 6 Vict. c. 18, and possibly the effect 
 of that incorporation may be to enable the claim to be 
 opposed in Court ; but that alone would afford no suffi- 
 cient check. The priynd facie case would, if the argu- 
 ment of the other side prevail, be made out without the 
 attendance of the lodger claimant in Court, by simply 
 putting in his claim and declaration. The objector 
 would then have the difficulty thrown upon him of 
 displacing the primd facie case without having ade- 
 quate means of doing so. In the case of the householder 
 claimant the overseers can usually supply the necessary 
 information, but in the case of the lodger claimant they 
 have not the requisite knowledge. That the new 
 lodger claimant should get his franchise on such easy 
 terms, as compared with the householder claimant, is 
 clearly an anomaly, and that it would lead to pernicious 
 consequences can hardly be doubtful. The suggestion 
 
XLV VICTOIUA. 255 
 
 that sec. 23 was introduced in order to solve the legal 1881. 
 
 doubts of Revising Barristers is without foundation. It Nuth 
 
 is evident from sec. 22 that what was in the mind of tamplin. 
 
 the Legislature was, not any question of legal doubts, 
 
 but the removal of what was considered a hardship 
 
 upon the lodger voter, viz., that, having once proved his 
 
 claim, he should be compelled to prove it again and 
 
 again in each succeeding year. The position of sec. 23 
 
 between two sections (ss. 22 and 24), both of which 
 
 have reference to persons who are upon lists of voters, 
 
 and both of which admittedly apply to old lodger 
 
 claimants, who have been placed upon such lists, but 
 
 not to new lodger claimants, shows, it is submitted, that 
 
 the general words of sec. 23 should be restricted to the 
 
 class of lodger claimants who are within sec. 22. 
 
 [BowEN, J. The words of sec. 22 are " claim .... 
 to be so entered," whereas the words of sec. 23 and sec. 
 25 are " claiming " and " claim " " to vote as a lodger,"] 
 
 Strictly, the claim is always to be entered or inserted 
 in some list, as will be seen on reference to Form H. 
 There is no distinction as to this between the two 
 classes of lodger claimants. The expression "claim to 
 vote " is clearly only elliptical. As regards sec. 25, it 
 must be admitted that it cannot be confined to false 
 declarations by one class of lodger claimants, but that 
 it applies generally to both classes. That, however, 
 does not affect the argument founded on the grouping 
 of the sections and the general scope of the Act of 
 Parliament. The case of Fickard v. Baylis (a), and the 
 judgments there pronounced by Lord Coleridge, C.J., 
 
 (a) Ante, p. 98; S. C. L. R. 5 0. P. D. 235. 
 
256 MICHAELMAS SITTINGS. 
 
 1881. and Denman, J., are both strongly in the respondent's 
 
 Ndth favour, and looking to the language there employed it 
 
 Tamplin. is submitted that in the opinion of both those learned 
 
 judges the construction of sec. 23 was material to their 
 
 judgments. 
 
 [Denman, J. Giving to those remarks their utmost 
 effect in your favour, it caunot be said they were neces- 
 sary to the decision.] 
 
 It is submitted that they were material to it, and 
 further, that they were well founded. 
 
 Bompas, Q.C., replied, contending that what fell 
 from Lord Coleridge, C.J., and Denman, J., in Pickard 
 V. Baylis (a), on the point now before the Court, was 
 not a material part of their judgments, and pointing 
 out that Lindley, J., vfhile agreeing with the rest of 
 the Court in the decision at which they arrived, had on 
 the present point expressed a contrary opinion. 
 
 Denman, J. The only question in this case is 
 whether the words of sec. 23 of the 41 &, 42 Vict. c. 26, 
 apply to the present case. The words are as follows : 
 " In the case of a person claiming to vote as a lodger, 
 the declaration annexed to his notice of claim shall, for 
 the purposes of revision, be primd facie evidence of his 
 qualification." The Revising Barrister has decided, 
 and it has been contended hei-e in support of his deci- 
 cision, that the words which I have read do not apply 
 to new lodger claimants, but only to those who, beino- 
 on the previous register, have claimed again under 
 
 (o) Ante, p. 98; S. C. L. R. 5 C. P. D. 235. 
 
XLV VICTORIA. 257 
 
 sec. 22. In coming to that conclusion the Eevising 1881. 
 Barrister must, I think, have been influenced by the nuth 
 notion that certain diota, which fell from Lord Cole- tampltn. 
 ridge, C.J., and myself, in Pickard v. Baylis (a), 
 made that case an authority for the view on which 
 he acted. I must confess, that at the time when 
 Pickard v. Baylis (a) was decided I did entertain a 
 rather strong opinion founded on the position of sec. 23 
 between two- other sections (ss. 22 and 24), which 
 respectively deal with lists and persons on lists, that 
 sec. 23 was to be construed in a qualified sense, as 
 being only applicable to the case of claimants under 
 sec. 22, and not to the case of new claimants. But 
 having had my attention called to the language which 
 I then used, I am strongly of opinion that I desired in 
 that case cautiously to abstain from saying anything 
 that could be considered to make what I said upon this 
 point the ruling in the case. The point was started, if I 
 recollect rightly, from the Bench and not by the counsel 
 who was arguing, and I did not feel that it had under- 
 gone sufficient discussion to enable me to make this the 
 ground of my decision. In Coltman's Registration 
 Reports the point is correctly noted as being only a 
 semhle. My Lord may probably have expressed a some- 
 what stronger opinion than I did, but on the other 
 hand my brother Lindley expressed an opinion the 
 other way, and this, at all events, is clear, that nothing 
 then occurred, and no such judgment was pronounced, 
 as could .preclude us from approaching the point now as 
 a new one for our decision. 
 
 Having heard the point more fully argued, I am of 
 opinion that my brother Lindley's was the sounder 
 
 {a) Ante, p. 98 ; S. 0. L. R. 5 0. P. D. 235. 
 
258 MICHAELMAS SITTINGS. 
 
 1881. opinion, and that my own dictum in support of the 
 NcTH contrary view was wrong. The words of sec. 2-3 are 
 Tamplin. ^sry strong and comprehensive, and it is a well re- 
 cognized rule of construction that words ought not to 
 be imported into an Act of Parliament, either in exten- 
 sion or limitation of their plain meaning, except for the 
 most cogent reasons. It has been argued that it is 
 highly improbable that sec. 23 should apply to new 
 lodger claimants ; and this for several reasons, the most 
 forcible of these being that the new lodger claimant 
 would thus possess an advantage, which would not be 
 possessed by other new claimants. It does not appear 
 to me at all clear that the new lodger claimant's 
 position will, as the result of our adopting this con- 
 struction, be one of exceptional advantage. His claim, 
 which is accompanied by a declaration, has to be in 
 a very precise form ; there must be a witness to the 
 signature of the claimant, who declares his belief in the 
 correctness of the claim ; and any false statement in the 
 declaration either of the claimant or the witness is made 
 the subject of penal consequences. The argument 
 that the lodger claimant is placed in a better position 
 than other lodger claimants is, in my opinion, not by 
 any means a strong one. A stronger argument on the 
 other side is, that, if we adopt this limited construction 
 in sec. 23, we must put upon words which are identically 
 the same in ss. 23 and 25 two different meaninsrs. 
 Prima faxie the words of both sections apply to both 
 classes of lodger claimants ; it is admitted that they so 
 apply in sec. 25, yet we are asked to limit them in 
 sec. 23, and to put a construction upon them there 
 which will include one class of lodger claimants and 
 exchide the other class. We are asked to import words 
 into an Act of Parliament on a mere speculative 
 
XLV VICTORIA. 
 
 259 
 
 consideration, viz., whether the Legislature did, or did 1881 
 not, intend to be more generous to one class of Nuth 
 
 V. 
 
 voters than it did to another class. I am of opinion Tampun, 
 that we ought not to do so. The words of sec. 23 are 
 clear upon the face of the section, and looking at the 
 safeguards which the Legislature has provided I can 
 see no reason why the natural construction of the words 
 should not prevail. 
 
 I am therefore of opinion that the appeal ought to 
 succeed. 
 
 BoWEN, J. I am of the same opinion. The words 
 of sec. 23 are perfectly clear, and the only thing that 
 has made me pause in my opinion is the somewhat 
 positively expressed opinion of Lord Coleridge, C.J., in 
 Pickard v. Baylis (a), and that of my brother Denman 
 also there expressed, though with some reservation. 
 My opinion is certainly not .weakened by the consider- 
 ation that my brother Denman is now, upon more 
 mature reflection, of opinion that the view which he 
 formerly entertained cannot be supported. It is true 
 that the opinion expressed by my Lord remains, but I 
 must confess that I am not convinced by it ; and look- 
 ing to the fact that in Pickard v. Paylis {a) my ' 
 brother Lindley seems to have entertained an opinion 
 in conformity with the conclusion at which we now 
 arrive, I feel that this circumstance renders the opinion 
 expressed by my Lord in Pickard v. Baylis (a) more 
 open to question. 
 
 I therefore agree with my brother Denman that this 
 appeal should succeed, and consequently that the 
 decision of the Revising Barrister should be reversed. 
 
 Decision reversed. 
 
 (a) Ante, p. 98 ; S. C. L. R. 5 C. P. D. 235. 
 VOL. I. U 
 
260 MICHAELMAS SITTINGS. 
 
 1881. The respondent appealed. 
 
 NUTH 
 
 Tamplin. Charles, Q.C., was heard (Dec. 16) for the respondent 
 Tamplin. 
 
 Bompas, Q.C., for the claimant, was not called upon. 
 
 Jessell, M.R. The question which we have to 
 decide is the meaning of sec. 23 of the 41 & 42 Vict. 
 c. 26. [His Lordship read the section]. It has been 
 contended by Mr. Charles that, in construing this 
 section, the words " in the case of a person claiming to 
 vote as a lodger" are not to be read literally, but must 
 be limited by inserting after the word " person " some 
 such words as "such as is mentioned in the previous 
 section " or " already entered in respect of lodgings on 
 the register." When a contention of that kind is put 
 forward one of two things must be shown, either that 
 there is some other section of the Act, by which the 
 generality of the section to be construed is cut down, or 
 that the literal construction would lead to some 
 absurdity, and is repugnant to the general purview 
 of the Act. The argument of Mr. Charles, as I under- 
 stand it, was directed to establishing this latter pro- 
 position. The result of construing sec. 23 literally 
 would, as he contended, be, that a person who made 
 the required declaration would get upon the list of 
 voters, without it being possible for any one to object 
 to him. Before dealing with that argument, it will be 
 well to consider what the position of a lodger claimant 
 was before the Act of 1878 passed. Under sec. 30 of 
 the Act of 1867 he had to send in a claim and declara- 
 tion; but no penal consequences attached to his 
 making a false declaration. He had then to attend 
 
XLV VICTORIA. 2G1 
 
 either in person or by proxy at the Court of Revision, 1881. 
 
 and to support his claim there before tlie Revising Nuth 
 
 Barrister by adducing oral evidence as to the nature of Tamplin. 
 
 his qualification. Any person upon a list of voters for 
 
 the borough could, as I read the provisions upon the 
 
 subject — sec. 39 of 6 & 7 Vict. c. 18 (incorporated by 
 
 sec. 30 of 30 & 31 Vict. c. 102) — oppose his claim in the 
 
 Court of Revision. The lodger claimant, therefore, 
 
 under the Act of 1867 was subject to the inconvenience 
 
 of having to attend the Court of Revision either in 
 
 person or by some agent, and of adducing oral evidence. 
 
 But if his claim could be opposed then, as according to 
 
 my reading of those enactments it clearly could, I can 
 
 find nothing in the Act of 1878 to prevent its being 
 
 opposed now. It is true that the Act of 1878 says that 
 
 the declaration shall be primd facie evidence, but by 
 
 sec. 25 the making a false declaration is now made a 
 
 misdemeanor, punishable by fine or imprisonment, so 
 
 that a lodger claimant who makes a declaration is 
 
 placed by the Act of 1878 very much in the same 
 
 position as a person who makes an affidavit. Although 
 
 the declaration is primd facie evidence, it is competent 
 
 to oppose it by putting in rebutting evidence. It 
 
 has been suggested that this will put the lodger 
 
 claimant in a worse position than he was in before. 
 
 But I do not think so. If the claim be a good one, it 
 
 is not to be anticipated that false rebutting evidence 
 
 will be put forward. But suppose rebutting evidence is 
 
 put forward: why should not the claimant's agent in 
 
 that event support the clajni, or, if necessary, apply 
 
 for an adjournment ? The claimant, if he anticipates 
 
 an objection, may still come, in the first instance, and 
 
 prove his case, for the Act of 1878 does not deprive him 
 
 of any right which he previously possessed. Then it is 
 
 U2 
 
262 MICHAELMAS SITTINGS. 
 
 1881. suggested that the claimact may neither come himself, 
 NtiTH nor be represented. In that case I think that it would 
 Tamplin. be the duty of the overseers to bring the claim before 
 the Eevising Barrister. In the present case an agent 
 did appear on behalf of the claimant, and the claim was 
 unopposed ; and it is not to be anticipated, where a 
 claim is made hondjide, that it will be opposed, merely 
 because the claimant relies upon the prima facie 
 evidence of his declaration. I think, therefore, that 
 Mr. Charles has made out no case, but I prefer to rest 
 my opinion upon the broad ground that, where no such 
 limitation as I have suggested exists, the literal wording 
 of an Act of Parliament is to be obeyed and carried into 
 execution. 
 
 I am therefore of opinion that the decision of the 
 Court below was correct,and that it must be affirmed. 
 
 Baggallay, L.J. In my opinion the reasons assigned 
 by Mr. Justice Denman in the Court below are quite 
 sufficient for the purpose of reversing the decision of 
 the Revising Barrister, and I adopt them as the ground 
 of my decision. In saying this, however, I in no way 
 dissent from the view which the Master of the Rolls has 
 expressed, but, on the contrary, I assent to it. The claim 
 here was made and published in due form, and even if 
 no one had appeared in support of it, I think that, in 
 the absence of rebutting evidence, it would have been 
 the duty of the Revising Barrister to give effect to the 
 claimant's declaration. 
 
 Brett, L.J. The only question before us is the con- 
 struction of sec. 23 of 41 & 42 Vict. c. 26, but in order 
 to give my opinion upon it I will endeavour to show 
 how I think it takes effect. 
 
XLV VICTORIA. 
 
 263 
 
 With regard to the duties of a Revising Barrister in 1881. 
 a borough, it is to be observed that, when the overseers Nuth 
 
 V, 
 
 have done their duty, the only things which he has to Tamplin. 
 revise are lists, there being no register at all before him. 
 In one case only he has to revise what is not a list, 
 viz., where, although a claim has been made, the over- 
 seers have omitted to put the name of the claimant 
 upon any list. 
 
 In boroughs the overseers make out the general list 
 of voters ; and persons omitted from that list claim, and 
 thereupon the overseers make out a list of such claim- 
 ants. There is, therefore, a general list and a list of 
 claimants, the claimants being persons omitted from the 
 general list. As regards lodgers, there are some of 
 them who assert that they were on the list of voters of 
 the previous year as lodgers. Under sec. 22 of the Act 
 - of 1878 these lodgers are entitled to claim, stating that 
 they are on the register of voters in respect of the same 
 lodgings. Then by sec. 22 their names are put by the 
 overseers in a list, which is a list to be revised, sub- 
 ject, however, to this stipulation of a former Registra- 
 tion Act (incorporated by sec. 22), that anyone who 
 objects to any of such persons must give them proper 
 notice of objection before the time of revision. This 
 list has then to be revised by the Revising Barrister, 
 and, if no notices of objection have been given, the 
 names which have been thus entered upon it are 
 allowed by him. But with regard to those lodgers who 
 were not on the list of voters of the previous year, the 
 mode of claiming is determined, not by the Act of 
 1878, but by the Act of 1867. Under sec. 30 of the 
 Act of 1867, these lodgers are to send in claims, and 
 thereupon the overseers are to make out a list of such 
 claimants, which is brought before the Revising Barrister, 
 
Tamplin. 
 
 264 MICHAELMAS SITTINGS. 
 
 1881. and all such claimants are bound to support and make 
 NuTH out their claims, even though they are unopposed. 
 Under sec. 39 of 6 & 7 Vict. c. 18 (introduced into the 
 Act of 1867 by the same 30th section), anyone on the 
 list of voters has a right to oppose, and to test the claim 
 and see that it is proved, and, in the event of a prima 
 facie case being made out, to rebut it by evidence. It is 
 true that under this 39th section there is a requirement 
 that notice in writing of the intention to oppose should 
 be given in Court to the Revising Barrister, but in 
 practice, as every Eevising Barrister knows, that 
 formality is never insisted upon. That then being the 
 state of the law, and the obligation upon a new lodger 
 claimant, under the Act of 1867, there is nothing in the 
 Act of 1878 which gets rid of any part of that obliga- 
 tion. The new lodger claimant is still bound, as 
 formerly, to make out his claim, even though it be un- 
 opposed. 
 
 Then comes the question, to whom sec. 23 applies. 
 It certainly applies to those lodger claimants who were 
 on the list of voters of the previous year for the same 
 lodgings. When notice of objection has been given to 
 them, they have only to put in the declaration, which is 
 primd facie evidence of their qualification, and tlie 
 objector will then have to meet a primd facie case. 
 Then does sec. 23 apply to the case of a new lodger 
 claimant ? I think it does. The words of the section 
 are as large as they can be, and the words "for the 
 purposes of revision" apply equally to a new lodger 
 claimant? If the lodger claimant is present at the 
 Revision Court, or anyone is there on his behalf, 
 the section to my mind presents no difficulty. 
 What struck me as a difficulty was whether the 
 claimant or some one on his behalf ought not to be 
 
XLV VICTORIA. 265 
 
 present, as he is still bound to make out his claim. T 1881. 
 think, however, that this only goes to the question of Nuth 
 evidence. If the lodger claimant he not present either tamplin. 
 in person, or by a representative, it would, I think, be 
 the duty of the overseers to draw attention to the 
 declaration, or, if the overseers are not present, the 
 Revising Barrister ought himself to take notice of it, 
 and to allow the claim, unless there is some one there 
 who can show that it is wrong. If the claim be shown 
 to be wrong, then, if the claimant be not present, and 
 has no one to represent hiin, it is his misfortune. I 
 think that no previous notice of objection need be 
 given. The claimant is bound to support his claim ; 
 ' that claim may be answered, and if he be not there it is 
 his own fault. The Act of Parliament does not there- 
 fore work the hardship which at one time occurred to 
 me. 
 
 I am of opinion that the words of sec. 23 must be 
 construed in their ordinary sense, and, so construed, 
 that they apply to make the declaration evidence 
 equally in the case of lodger claimants, who claim for 
 the first time, as in the case of those who, being on the 
 old register, are claiming again under sec. 22. 
 
 Cotton, L.J. I am of opinion that the judgment of 
 the Court below was correct. The question turns on the 
 construction of sec. 23 of 41 & 42 Vict. c. 26 taken in 
 conjunction with other parts of the same Act, and others 
 in pari materia. It is conceded that the case of a new 
 lodger claimant falls within the words of sec. 23. No 
 other section has been pointed out which restricts its 
 meaning or operation, and in my opinion none exists. 
 Then is there any such manifest inconvenience in the 
 adoption of the literal construction, as might make it 
 
2C6 MICHAELMAS SITTINGS. 
 
 1881. right that we should restrict the language of the section ? 
 
 Ndth The effect of it is for the first time to inai;e the declara- 
 Tamplin. *i°^ '^^ ^ lodger claimant primd facie evidence of his 
 qualification, when otherwise he would, if a new 
 claimant, have had to support his claim. In this I can 
 see no manifest inconvenience. It is possible that it 
 may place a new lodger claimant in a somewhat more 
 favourable position than another claimant, but that is 
 in my judgment no reason for holding the enactment 
 not to be applicable. 
 
 I am of opinion that the enactment applies to new 
 lodger claimants, as well as to those who were on the 
 former register. 
 
 LiNDLEY, L.J. I am of the same opinion. In order 
 to understand sec. 23 we have only to look at it with 
 sec. 25, and Form H. in the schedule. These are all 
 perfectly consistent, and there is no escape from the 
 conclusion that the words of sec. 23 must be construed 
 according to their pi-imd facie meaniag, and conse- 
 quently that they apply to all lodger claimants. It Ls 
 said that we ought to restrict the meaning upon the 
 ground of some hardship or inconvenience to which 
 lodgers might otherwise be subj^ted by being ob- 
 jected to without receiving any notice of objection. 
 Whether that be so or not, I think it is practically 
 more convenient for lodgers as a class that they 
 should be able to act upon their declaration as 
 prvmd facie evidence of their qualification and run 
 the risk of being met with rebutting evidence, than 
 that they should be under the necessity in order to 
 support their claims of attending in crowds at the 
 Court of Revision. 
 
 I can see no reason at all for cutting down the general 
 
XLV VICTOEIA. 267 
 
 language of sec. 23, and I therefore think the appeal 1881. 
 
 should be dismissed, with costs. Nvib. 
 
 Appeal dismissed. t^mfun. 
 
 Solicitors — For Appellant, H. T. Ives. 
 
 For Respondent, 0. 8. Joseph. 
 
268 MICHAELMAS SITTINGS. 
 
 Beabn, Appellant ; Watson, Eespondent. 
 
 Freehold rent-charge 
 on freehold lands. 
 
 Middletim. G.L. 
 Watson, Esq. 
 
 1881. AT a Court held by the Revising Barrister appointed 
 
 ^^'"'- ^^- to revise the lists of voters for the Northern Division 
 
 A claimant of ^f ^j^g countv of Northampton, the appellant, John 
 
 the county '' 
 
 franchise in Hohson Beam, duly objected to the name of Edward 
 
 county N waa _ . 
 
 the owner of Spencer Watson, the respondent, being inserted in the 
 charge of £100 list of voters for the parish of Middleton, in the said 
 
 per annum, t ■ ■ r. , i • j . 
 
 charged upon division of the Said county. 
 
 io'mtoN '^'i® name and qualification of the respondent ap- 
 
 and L. The geared in the list of claims as follows : — 
 
 annual value '■ 
 
 of the land in _^_^_ . 
 
 county N waa 
 
 considerably Watson, Edward Riverside House, 
 
 above £5, but Spencer, Shambrook, 
 
 if the rent- Bedfo^-d. 
 
 charge were 
 
 apportioned 
 
 quantity and There was produced on behalf of the respondent a 
 of the iand"hi properly stamped and duly executed indenture, bearing 
 thf roport^'on ^^^^ *^® 25th of June, ISSQ, whereby George Lewis 
 issuing out of '\^(itson granted unto the respondent and his assigns, 
 county N during the joint lives of the said George Lewis Watson 
 
 would be 
 
 below £5. and the respondent, an annuity or yearly rent-charge of 
 
 Held, that the , , , , . . 
 
 value of the £100, to be charged upon and issuing and payable half- 
 
 rent-oharge in , , „ , i_ c ^ i 
 
 county N was yearly out 01 a messuage, tenement, or farmhouse and 
 
 coS er^the' *° farm, situate in the parishes of Drayton, &c., in the 
 
 franchise. county of Leicester, and in the parish of Middleton, in the 
 
 county of Northavipton, containing altogether 220 acres 
 
 3 roods and 15 perches, of which 211 acres 1 rood and 
 
XLV VICTOKIA. 269 
 
 24 perches were in the county oi Leicester, and 9 acres 1881. 
 1 rood and 31 perches in the said parish of Middleton, Beaen 
 in the said division of the county of Northampton. Wat'son. 
 
 The deed contained the following powers of distress 
 and entry for recovery of the rent-charge, viz. : — 
 
 " That if any part of the said annuity or yearly rent- 
 charge shall at any time be unpaid for twenty-one days 
 next after the times hereby appointed for the payment 
 thereof, then and so often as the same shall happen, it 
 shall be lawful for the said Edward Spencer Watson 
 and his assigns to enter into and distrain upon the said 
 premises hereinbefore charged therewith, or any part 
 thereof, and to dispose according to law of the distress 
 or distresses then and there found, to the intent that 
 thereby or otherwise the said annuity or yearly rent- 
 charge, and every part thereof so unpaid, and all costs 
 and expenses occasioned by the non-payment thereof, 
 may be paid and satisfied ; and further, that if any part 
 of the said annuity or yearly rent-charge shall remain 
 unpaid fo r forty days next after any of the times 
 hereby appointed for payment thereof, and so often 
 (although tjhere shall not have been any legal demand 
 made thereof) it shall be lawful for the said Edward 
 Spencer W'dtson and his assigns to enter into and upon 
 and to hold\ and enjoy the said premises hereinbefore 
 charged thet^ewith, or any part thereof, and to take the 
 rents and prCpfits thereof untU he or they shall thereby 
 or otherwise '>foe paid and satisfied the same annuity or 
 yearly rent-ch^ rge and the arrears thereof due at the 
 time of such entry or afterwkrals to become due during 
 his or their being in possession of the'ssajne premises, 
 together with all costs and expenses occasioned^ hy the 
 non-payment thereof, and such possession when taix'm 
 to be without impeachment of waste." 
 
270 MICHAELMAS SITTINGS. 
 
 1881. The farmhouse and buildings were all in the county 
 
 Beabn of Leicester. 
 
 Watson. ^^ '^^^ contended on behalf of the objector, that for 
 the purposes of the franchise the rent-charge must be 
 rateably apportioned upon the whole of the lands 
 charged therewith, in which case a part of the rent- 
 charge not amounting to £5, i.e., £4 5s. Qd. only, would 
 issue out of the lands in the county of Northampton ; 
 that the rent-charge being a life rent-charge, and, as an 
 incorporeal hereditament, incapable of actual and hoTui 
 fide occupation, and the proportion of it deemed to be 
 issuing out of the lands in the county of Northampton 
 being below £5, the respondent was not entitled to be 
 placed on the register in respect thereof 
 
 On behalf of the respondent it was admitted that, if 
 the rent-charge was -apportioned rateably to the quan- 
 tity and annual value of the land in each county, the 
 proportion of it which would be then deemed to be 
 issuing out of the lands in the county of Northampton 
 would be below £5 ; but it was urged that it was not 
 necessary so to apportion the rent-charge rateably upon 
 the lands in the two counties, for by vii+tue of the 
 powers given to the respondent in the said deed of 
 grant he might distrain or enter upon any part of the 
 premises charged for recovery of the whole rent-charge, 
 which must therefore be deemed to be issuing out of 
 every part for all purposes. i 
 
 It was stated on behalf of the responJdent, and ad- 
 mitted on behalf of the appellant, that tL^ annual value 
 of the land in No^'thm}>i^tonshlre' vfas (considerably 
 above £5^__Jtr was admitted that the resUndent was 
 not m^ctual occupation of any part of the! lands out of 
 T«imch the rent-charge issued. 
 .^ The Revising Barrister decided that the claimant 
 
XLV VICTORIA, 271 
 
 had a right to have his name inserted in the said 1881. 
 
 list of voters, and inserted his name accordingly, Beakn 
 being of opinion that owing to the powers of distress watson. 
 and entry upon any part of the premises charged, 
 contained in the deed of grant, the rent-charge need 
 not be apportioned rateably to the quantity or annual 
 value of the lands in the two counties, but that the 
 whole, or any portion of it, might be deemed, for the 
 purposes of the franchise, to. be charged upon and 
 issuing and payable out of the lands in the county of 
 Northampton. 
 
 Due notice of appeal was given. 
 
 If the decision of ,the Eevising Barrister was correct, 
 the list, as revised, was to remain without alteration ; 
 if incorrect, the name of the respondent was to be 
 expunged from the list of voters. 
 
 Hensman for the appellant. The decision of the 
 Ee\ising Barrister was wrong, and evidently based 
 upon a wrong principle. The principle established by 
 the authorities as applicable to this class of cases is 
 that of apportionment. That principle the Revising 
 Barrister has entirely rejected, stating that he did so 
 on account of the powers of entry and distress in the 
 deed creating the rent-charge. The terms of the deed, 
 however, contain nothing unusual, so that the only 
 ground on which the decision of the Revising Barrister 
 can be supposed to have proceeded must be, that, as 
 the rent issues out of every part of the land on which it 
 is charged, each and every part of the land is liable to 
 be distrained on for the whole of the rent. The truth 
 of that proposition is, of course, not denied, but it is 
 submitted that it can afford no test of the value of the 
 rent-charge. The reason why it cannot is manifest, 
 
272 MICHAELMAS SITTINGS. 
 
 1881. when it is considered what the consequences of apply- 
 Beaen ing such a test would be. It is true, no doubt, that 
 Watson, the question to be ascertained is the value of the rent- 
 charge in the county where the vote is claimed ; but 
 the circumstance that the rent is charged upon land, 
 which is partly in one county, and partly in another, is 
 a necessary element in ascertaining that value. If the 
 view of the Eevising Barrister were to be adopted, the 
 consequence would be, that a person who has a rent- 
 charge for life of the annual value of £5, charged upon 
 land in several counties, might, in respect of that 
 annual sum of only £5, acquire a freehold vote in every 
 county where the land was situated. A view which 
 would lead to a result so entirely contrary to the prin- 
 ciples by which election law is governed is evidently 
 one which cannot be supported. West v. Rohson (a) 
 and Mills v. Cobb (b) are both authorities that the 
 true principle is that of apportionment. 
 
 [Denman, J., referred to Barrow v. Buckmaster (c).] 
 
 That case also illustrates the principle contended for, 
 which is in direct contravention of the one on which 
 the Revising Barrister has acted. 
 
 H. E. Smith for the appellant. The principle of 
 apportionment, on which the other side rely, is one 
 which leads, as can be shown, to anomalous results; 
 and if its application to the present case can be con- 
 sidered an open question upon the authorities, it is 
 submitted that the principle ought not to be applied. 
 
 (a) K. A. 0. Ul\; S. C. Z C. B. 2 0. P. 95. 
 
 ^- ^- *22. (c) 2 Zutw. 2S5: S C 12 O n 
 
 (b) Hopw. & Ph. 357 ; S. C. L. R. 664. ^ , o. o. i^ U ^. 
 
XLV VICTORIA. 273 
 
 The anomaly may be illustrated thus. Suppose a rent- 1881. 
 charge, charged upon land in two counties, A. and B., Bkahn 
 to be of sufiScient value, when apportioned, to give its watson. 
 owner a vote in each county, and then subsequently 
 that additional land in county A. is subjected to the 
 rent-charge without any alteration being made in 
 county B. The effect, according to the principle of 
 apportionment, of the addition to the land charged in 
 county A., would be, to diminish the value of the rent- 
 charge in county B., and might obviously be so to 
 diminish it, if enough land were charged in county A., 
 as to destroy the franchise in county B. altogether. 
 The qualification in county B. would in that event be 
 destroyed by the mere act of improving in county A. 
 the thing out of which the qualification in county A. 
 arose. In the present case the Kevising Barrister has 
 found the value of the lands in WorthaTnptonsMre was 
 above £5, and there is no necessity to have recourse to 
 the lands in Leicestershire. As regards the authorities, 
 West V. Robson (a) was not the case of a rent-charge. 
 There it was impossible for the present point to be 
 raised effectually, inasmuch as it was clear that no 
 power of distress, existed. Mills v. Cobb (b) was also 
 not the case of a rent-charge. "It must be admitted, 
 however, that in the latter case there is a dictum in 
 the judgment of Erie, C.J., which is adverse to the 
 respondent's argument here. Erie, C.J., there said, " I 
 am of opinion that, if a person is the owner of a rent- 
 charge of £5 a year issuing out of certain lands, he 
 has no right to say that it issues out of one portion only 
 of those lands, in order to give himself a right to vote." 
 Unless that expression of the Chief Justice's opinion 
 
 (a) K. & Or. 141; S. C. 3 C. B. (6) Bo^w. & Ph. 357 ; S. C. L. 
 
 N.S. 422. R- 2 a P. 95. 
 
274 MICHAELMAS SITTINGS. 
 
 1881. can be impeached, it must be admitted that the 
 Beaen respondent cannot succeed. 
 
 V. 
 
 Watson. 
 
 Hensynan was not heard in reply. 
 
 Denman, J. The only question we have to consider 
 is- whether the principle, on which the Revising Bar- 
 rister's decision was founded, is right or wrong. The 
 Revising Barrister appears to have considered that, 
 because the power of distress extended over the whole, 
 and every part of the lands charged, the rent-charge 
 might be regarded for the purpose of the franchise as 
 of the value of its whole amount in both counties. Bu4. 
 that is plainly contrary to the principle which Erie, C. J., 
 enunciates in Mills v. Gohh (a). I think that we must 
 look at the rent-charge, as it affects the lands in each 
 county, and that Barrow v. Buclcmaster (6) lays down 
 a light principle, by which we ought to abide. The 
 rent-charge is to be regarded as diminished in value 
 but only to the extent to which an apportionment 
 would diminish it. This would diminish it here below 
 the value which is requisite for the franchise. 
 
 The decision of the Revising Barrister must, there- 
 fore, be reversed with costs. 
 
 BoWEN, J., concuiTed. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, Hevsman. 
 
 For Respondent, Lamb & Strenger, 
 Kettering. 
 
 (a) Hopw. & Ph. 357 ; S. C. L. R (J) 2 Lutw. 235 ; S. C. 12 C. B 
 
 2 a P. 95. 664. 
 
XLV VICTORIA. 275 
 
 Adams, Appellant ; Bostock, Respondent. 
 
 A T a Court held before the Revising Barrister appointed 1881. 
 
 -^ . . Nov. 23. 
 
 to revise the list of voters for the borough of Horsham - 
 
 the respondent objected to the name of the appellant his notice of 
 being retained in the list of voters for the said borough. borough\oter 
 The notice of objection was as follows :— seif^s^""'"" 
 
 the list of 
 " To Mr. Frend Adams. parliamentary 
 
 " I hereby give you notice that I object to your name being voters for the 
 retained on the list of persons entitled to vote at the election of a ¥. (,„!(-(-gj' 
 member to serve in Parliament for the parliamentary borough of to state his 
 Horsham, on the following grounds, viz. : — That you have not occupied P™"® of abode, 
 twelve months to July 15. had resided in 
 
 " Dated this 25th day of Aug., 1881. H all his life, 
 
 « (Signed) Arthur Reid Bostock, ^^IZfe 
 
 " On the list of parliamentary voters for the (being a prac- 
 " parish of Horsham. tising solicitor, 
 
 ,„,, _ ,,, _. , „ clerk to the 
 
 " To Mr. Frend Adams, Horsham. 
 
 and coroner). 
 
 The appellant objected that such notice ■fras invalid The omission 
 
 , . . . , . , • T 1 , ^^ misled no 
 
 and void in law, inasmuch as it did not state the place one. The 
 of abode of the objector, and that it could not be ri&ter hfving' 
 
 J J amended the 
 
 amended. „„ti,3 „f „i,- 
 
 The borough of Horsham comprises the greater part i«<'*;°'i ^y '"■ 
 of, and is contained within, the parish of Horsham,, and "^"^^ "<>' H>" 
 
 which it was 
 
 in every instance in which the residence of the voter admitted 
 
 sufficiently 
 
 was within the parish of Horsham, the place of abode described the 
 was described as Horsham, only in the list of voters. place of abode: 
 
 held that the 
 omission was a " mistake " within sub-s. 2 of 41 & i2 VM. c 26, s. 28, which the Revising 
 Barrister had power to amend. 
 
276 MICHAELMAS SITTINGS. 
 
 1881. The place of abode of the respondent was described 
 
 Adams in the list of voters as "Horsham." No other person 
 
 BosTOOK. of tbe same name was on the list of voters, and it was 
 
 admitted that if the respondent had inserted in his 
 
 notice of objection the words " of Horsham " the notice 
 
 of objection would have been valid. 
 
 The respondent was a solicitor practising at Horsham, 
 clerk to the magistrates, and coroner; he had resided 
 in the parish of Horsham all his life, and was well 
 known to the inhabitants thereof. 
 
 The names of thirteen other persons were objected to 
 
 under similar circumstances. The notices of objection 
 
 were duly served on the persons objected to ; and the 
 
 ' notices of objection served on the overseers were duly 
 
 published by them. 
 
 No evidence was produced before the Revising 
 Barrister that any one of the persons so objected to 
 was misled or deceived, and he held as a fact that no 
 one of such persons was misled or deceived by the 
 omission of the words " of Horsham." 
 
 The Revising Barrister further held that the omission 
 of the words " of Horsham, " was a mistake within sub- 
 s. 2 of sec. 28 of 41 & 42 Vict. c. 26, and in the exer- 
 cise of his discretion he corrected such mistake by 
 inserting the words " of Horsham " in the notices of 
 objection. 
 
 It was admitted that if the alleged defect in the 
 notices of objection was capable of amendment, the 
 names of the appellant and the said thirteen other 
 persons must be expunged from the said list of voters, 
 and the Revising Barrister accordingly expunged the 
 same. 
 
 Due notices of appeal were given, and the Revising 
 Barrister consolidated the appeals. 
 
XLV VICTORIA. 
 
 277 
 
 If the Court should be of opinion that the Eevising 1881. 
 
 Barrister's decision was wrong, the register was to be Adams 
 
 amended by inserting the names of the appellant and Bostook. 
 the said thirteen other persons in the list of voters. 
 
 BoTnpas, Q.C., for the appellant. The question in 
 this case is, whether the omission from the notice of 
 objection of the objector's place of abode was amend- 
 able by the Revising Barrister as a " mistake " within 
 41 & 42 Vict. c. 26, s. 28, sub-s. 2. It is submitted 
 that it was not. In one sense no doubt any omission 
 of what is essential to the validity of a notice may be 
 said to be a "mistake;" but where there has been an 
 entire omission of something essential, and the person 
 who has made the omission has inserted in the notice 
 all that he intended to insert, that, it is contended, 
 does not constitute a " mistake " within the meaning of 
 the sub-section. The express provision in sub-s. 6, 
 for enabling omissions to be supplied in certain specified 
 cases, goes far to show that omissions were not intended 
 to be included generally in the powers, previously given, 
 to amend mistakes. 
 
 [BowEN, J. Sub-s. 6 enables many things to be 
 done which do not consist of the amendment of mis- 
 takes.] 
 
 " Mistake " must surely have the same meaning in 
 sub-s. 2 as it has in sub-s. 1; and, as regards subs. 1, 
 the language is taken in terms from 6 & 7 Vict. c. 18, 
 s. 40. Although there is no express decision upon 
 6 & 7 Vict. c. 18, s. 40, as to the construction of the 
 clause authorising the amendment of mistakes, there 
 are some judicial expressions of opinion in reference to 
 
 X 2 
 
278 
 
 MICHAELMAS SITTINGS. 
 
 1881. it. In Luclcett v. Knowles (a), Maule, J., appears to 
 
 Adam3 have doubted whether it would authorise the amend- 
 
 V. 
 
 BosTooK. ment of a misdescription of the place of abode, and in 
 Bendle v. Watson (h), Brett, J., was of opinion that it 
 would not authorise the amendment of a misdescription 
 of the qualification. In Ballard v. Robins (c) the 
 mistake, which was a mere blunder of the overseers, 
 consisted, not in the omission of the voter's name from 
 the lists, but in the placing it upon a wrong list. In 
 Pickard v. Baylis (d) the question was not raised 
 whether the omissions in the claim were "mistakes," 
 but only whether, assuming them to be " mistakes," the 
 refusal of the Eevising Barrister to amend them was 
 justifiable. A "mistake," to be within the Act of 
 Parliament, must, it is submitted, be one, in which the 
 error is unintentional. 
 
 [BowEN, J. In this case we are not to suppose that 
 the objector's place of abode has been purposely 
 omitted.] 
 
 The case does not find the omission to have been 
 accidental. The only sense in which the omission can 
 be called a mistake is, that the notice did not contain 
 what was essential to its validity. The voter is entitled 
 to know who the objector is. Moreover it is of prac- 
 tical importance that the voter should have this know- 
 ledge, that he may be enabled to communicate with 
 the objector, since this would frequently lead to the 
 withdrawal of the objection. 
 
 (a) 2 C. B. 191. L. R. 3 0. P. D. 92. 
 (J) 1 Hopw. & Colt. 603; 8. 0. {d) Colt. Reg. Cos. 98- S O 
 
 L. R. 7 C P. 170. L. R. 5 C P. B. 235. 
 (c) 2 Hopw. <b Colt. 38i; S. C. 
 
XLV VICTORIA. 279 
 
 [BoWEN, J. Here the case finds that the objector was 1881. 
 well known in Horsham.] Adams 
 
 V. 
 
 BOSTOOK. 
 
 Woollett V. Davis (a) is a distinct authority for the 
 position that the omission to state the ohjector's place 
 of abode is fatal to the notice of objection. The form 
 of the notice (Form I.) in the schedule to 41 & 42 
 Vict c. 26 ex-pressly requires the place of abode to be 
 stated, and sec. 8 contains a substantive provision that 
 the forms given in the schedule are to form part of the 
 enactment. 
 
 [He also referred to Melbourne v. Greenfield (S).] 
 
 A. L. Smith for the respondent. The present case 
 is, in reality, governed by authority. In James v. 
 Howarth (c) an omission of, at least, equal importance 
 in a notice of objection was held to be amendable. 
 Lindley, J., there said, " The word ' parliamentary ' is 
 undoubtedly an important word here, and I must own 
 that, if there had been no power of amendment, I 
 should have thought its omission invalidated the notice. 
 But sec. 28, sub-s. 2, gives power to the Eevising 
 Barrister to amend in the case of a ' mistake,' and an 
 omission may be as much a mistake as the putting in 
 what ought not to be inserted." 
 
 [He was then stopped by the Court.] 
 
 Denman, J. I cannot entertain a doubt that the 
 power of amendment in sec. 28 of 41 & 42 Vict. c. 26 
 was intended to include a trivial and unimportant 
 matter such as this. The case states as a fact what in 
 a small borough like Horsham one would expect, that 
 
 (o) 1 Lutw. 607; S. O. i C. B. N. S. 1. 
 115 (c) OoU. Reg. Cat. 87, 97; 5. C. 
 
 (J) K. <fe 0. 261 ;■ S. C. 7 C. B. L. B. 5 O. P. D. 225, 231. 
 
280 MICHAELMAS SITTINGS. 
 
 1881. the respondent (who was a person occupying official 
 Adams positions there) was thoroughly well known. The omis- 
 BosTooK. sion of his place of abode from the notice of objection 
 neither did, nor could, mislead anyone. The case of 
 James v. Howarth (a) is an ample authority that an 
 omission such as this is amendable, and if any of the 
 earlier cases are in conflict with James v. Howarth (a) 
 I think they must be considered as overruled by that 
 case. 
 
 The decision of the Eevising Barrister must there- 
 fore be affirmed. 
 
 BowEN, J. I am of the same opinion. It is not 
 necessary to decide that every omission of the place of 
 abode in a notice of objection would be an amendable 
 "mistake." It may be that in some cases it would, and in 
 others that it would not. All that it is necessary to hold 
 is, that under the circumstances of this case, the Re- 
 vising Barrister was not wrong in believing that he was 
 entitled to come to the conclusion at which he arrived. 
 Had I been in the Revising Barrister's position myself, 
 I should have come to the conclusion that the omission 
 of the place of abode was an unintentional mistake. 
 
 Bom,pas, Q.C., for the appellant, applied that costs 
 might not be allowed, citing Jarnes v. Hoioarth (b) as 
 a case in which, an amendment being necessary to the 
 validity of the notice, the Court declined to award 
 costs. 
 
 A. L. Smith. In James v. Howarth (b) the Re- 
 vising Barrister having refused to amend, the Court 
 
 (a) Ante, p. 87 ; 5. 01 5 C. P. D. (6) Ante, p. 97 ; S. C. 5 O. P. D. 
 
 22a. 231. 
 
XLV VICTORIA. 281 
 
 reversed his decision, but without costs. Here the 1881. 
 
 V. 
 BOBTOOK. 
 
 judgment of the Court is in affirmance of the Revising adams 
 Barrister's decision that it was a case for an amend- 
 ment. 
 
 Per Curiam. We think that in this case costs should 
 be allowed. 
 
 Decision affirmed with costs. 
 
 Solicitors — For Appellant, J. G. Charlton. 
 
 For Respondent, Robinson, Preston, 
 <So Stow. 
 
282 MICHAELMAS SITTINGS. 
 
 Chilcott, Appellant ; Bullen, Eespondent. 
 
 Nov. 24. 
 
 One who ocou 
 pies in a par 
 
 1881. A T a Court held before the Eevising Barrister appointed 
 
 to revise the lists of voters for the Western Division oi 
 
 the county of Gornfvwall, an objection was duly made by 
 
 liamentary ^j^g appellant, John^ Gilbert Chilcott, to the name of the 
 
 borough his rr > 
 
 own freehold respondent, William Bullen, being retained on the list 
 
 house (capable 
 
 of conferring of voters for the parish of St. Man-y, Truro, on the 
 
 a borough -..n • i> i. i i 
 
 vote), and ground that the qualifying property was a treenoid 
 occupies a sliop occupied by the respondent of such value as would 
 house in the Confer on him the right of voting at parliamentary elec- 
 same borough ^- f^j. ^j^g borough of Truro. 
 
 IS not entitled ° 
 
 to the county j^ ^^g admitted that the qualifying property in ques- 
 respect of the tion was such as it was described in the notice of objec- 
 
 freehold, . 
 
 altiiough the tion, and that it was of such value as would confer 
 riater for the upon the respondent the right of voting for the parlia- 
 unS'i'^Aimentary borough of Tru.ro. 
 
 28"*ub- iT '^^® following facts were also proved or admitted, 
 retained the The respondent was also the occupier of a dwelling- 
 house qualiH- house situat§ in the parish of 8t. Clement in the said 
 
 cation for 
 
 voting, and borOUgh. 
 
 the freehold. The respondent is on the register of parliamentary 
 pier is not ' voters for the said borough, both in respect of the said 
 vote for the dwelling-house and the said freehold shop, 
 borough in j^ revising the list of parliamentary voters for the 
 
 rsspcct 
 
 thereof. gaid borough on a previous day the Revising Barrister 
 
 had in compliance with sub-s. 14 of sec. 28 of 41 & 42 
 Vict. c. 26, placed against the entry on the said list of 
 
XLV VICTORIA. 283 
 
 voters of the name of the respondoBt, in respect of the 1881. 
 said freehold shop, a note to the effect that the re- chiloott 
 spondent was not entitled to vote in respect of the bollbn. 
 qualification contained therein for the parliamentary 
 borough, he being on the same list of voters in respect 
 of another qualification, viz., the said dwelling-house in 
 the parish of St. Clement. 
 
 It was argued on behalf of the respondent that by 
 reason of the Eevising Barrister having placed such 
 note as aforesaid against the name of the respondent 
 he was entitled to have his name retained on the list 
 of voters for the parish of St. Mary, Truro, while it 
 was argued by the appellant that the case came within 
 the express language of sec. 24 of 2 W. 4, c. 45, and 
 that the Revising Barrister was therefore bound to hold 
 the objection good. 
 
 The Revising Barrister held that the effect of the 
 note made by him in pursuance of 41 & 42 Vict. c. 26, 
 s. 28, sub-s. 14, was to deprive the respondent, during 
 the whole period for which both lists of voters (i.e. that 
 for the county and that for the borough) would be in 
 force, of his right of voting at any parliamentary elec- 
 tions for the borough in respect of his said freehold 
 shop, and that he was therefore so far as that property 
 was concerned in the position of a person having 
 no qualifying property in the borough, and that there- 
 fore sec. 24 of 2 W. 4, c. 45, did not apply, and 
 the Revising Barrister overruled the objection, and 
 retained the name of the respondent on the list of 
 voters. 
 
 The cases of two other persons depended upon the 
 same point of law, and the Revising Barrister consoli- 
 dated the appeals. 
 
 If the Court should be of opinion that the decision 
 
284 MICHAELMAS SITTINGS. 
 
 1881. was right the list of voters was to remain unaltered, 
 Chiloott otherwise the three names were to be expunged. 
 
 V. 
 BULLEN. 
 
 C. Hall, Q.C., for the appellant. The decision of the 
 Revising Barrister in favour of the vote was wrong. 
 The case is clearly within the words of sec. 24 of the 
 Reform Act, and sec. 28, sub-s. 14, of 41 & 42 Vict. c. 26, 
 an Act relating to borough registration and borough rights 
 of voting,,can have no application. The only object of the 
 Legislature in sub-s. 14 was, in dealing with the case of 
 a borough voter who has two qualifications in a borough, 
 to provide machinery for preventing him from voting 
 for both qualifications, and not in any way to enlarge 
 the right of voting for the county. So far as the question 
 of the county vote is concerned it is quite immaterial 
 what course the Revising Barrister may have taken, 
 when dealing with the subject of the borough qualifica- 
 tions. Sec. 24 of the Reform Act expressly takes away 
 the freeholder's right of voting for the county for 
 property in a borough, such in nature and value as to 
 give him the borough vote, whether he shall or shall 
 not have actually acquired the right of voting for the 
 borough in respect thereof. If the view taken by the 
 Revising Barrister were correct, the right to the county 
 franchise would in a case like the present depend on 
 the order in which the county and borough revision 
 took place, since, if the county revision were held first, 
 it could, of course, not be affected by anything done at 
 the borough revision, and the county vote would in that 
 case, of necessity, be disallowed, instead of being allowed 
 as it has been here. 
 
 Lindsell for the respondent. The object of sec. 24 
 of the Reform Act was to prevent the acquisition of 
 both the borough and the county franchise in respect of 
 
XLV VICTORIA. 28c 
 
 the same qualification. But where, after that statute 1881. 
 
 passed, a person occupied two distinct qualifications in Cbiloott 
 a borough, one of which would qualify him for the Bullbn. 
 county, the other for the borough — as, for instance, one, 
 a freehold house of his own, in annual value above 40s., 
 but under £10, and another, a house above £10 — 
 there, notwithstanding both qualifications were situated 
 within the limits of the borough, the county as well as 
 the borough firanchises might undoubtedly have been 
 acquired. If, however, the annual value of the freehold 
 tenement had been above £10, then as the value of the 
 tenement would in that case have been such as to make 
 it available for the borough franchise, it followed from 
 the terms of sec. 24 that it could not under those cir- 
 cumstances have been made available for the county. 
 That was an anomaly in legislation, which 41 & 42 
 Vict. c. 26, s. 28, sub.-s. 14, has, as is submitted, 
 removed. It enables the voter to select the qualifica- 
 tion iu respect of which he will exercise his borough 
 vote, and imposes on the Revising Barrister the duty 
 of noting all the other qualifications of the voter 
 which appear on the borough lists, as not available 
 for the borough franchise. The respondent's freehold 
 shop having been thus noted by the Eevising Barrister 
 as not available for the borough franchise, the case 
 is taken out of sec. 24 of the Reform Act, and the 
 freehold is made available as a qualification for the 
 county. 
 
 G. Hall, Q.C., was not heard in reply. 
 
 Denman, J. I am of opinion that the appellant is 
 entitled to our judgment. The words of sec. 24 of the 
 Reform Act (2 Will. 4, c. 45) are clearly applicable. 
 
■ 286 MICHAELMAS SITTINGS. 
 
 1881. and the 41 & 42 Vict. c. 26 has, in my opinion, in no 
 
 Chiloott "^^y affected their operation. 
 
 BnLLEN. From the facts stated it appears that the respondent 
 was the occupier of two properties, a freehold shop and 
 a dwelling-house, hoth within, and hoth constituting 
 qualifications for, a parliamentary borough, subject how- 
 ever to this difficulty, that the respondent could not be 
 allowed to remain upon the borough lists as a person 
 entitled to vote in respect of both qualifications. The 
 Revising Barrister for the county on the day before 
 that upon which he revised the county lists had re- 
 vised the lists for the borough, and had then found the 
 respondent's name entered upon the borough lists in 
 respect of both qualifications, and thereupon in com- 
 pliance with sec. 28, sub-s. 14, of 41 & 42 Vict. c. 26, 
 he had made a note against the entry relating to the 
 freehold shop, that the respondent was not entitled to 
 vote for the borough in respect of that qualification. 
 The objection having been taken at the county revision 
 that the freehold shop occupied by the respondent was 
 of such value as would confer on him the right of 
 voting for the borough, the Eevising Barrister appears 
 to have treated tbe note which on the day before he 
 had made upon the borough lists, as though it had the 
 effect of completely nullifying the qualification in 
 reference to which it had been made, and he thereupon 
 came to the conclusion that, by reason thereof, sec. 24 of 
 the Reform Act did not apply. This decision appears 
 to me in direct violation of the words of sec. 24. Mr. 
 Lindsell, indeed, admits that, if the case rested upon 
 the terms of the Reform Act, he would be out of 
 Court; but he contends that by the terms of sec. 
 28, sub-s. 14, of 41 & 42 Vict. c. 26, the law has 
 been altered. I can however find nothing to that 
 
XLV VICTORIA. 
 
 287 
 
 effect In the sub-section relied on ; and I think it 1881. 
 would be a strong thing so to hold, in the face of Chiioott 
 the title of the enactment and its provisions, relat- bollen. 
 ing, as they do, to borough registration and borough 
 rights of voting. The sub-section relied on does not, in 
 my opinion, touch sec. 24 of the Reform Act either 
 directly or indirectly. All that the sub-section says, in 
 effect, is, that where the name of any person is entered 
 more than once on the borough list of voters, the 
 Revising Barrister is to retain one entry for voting, and 
 place against the other or others a note that the person 
 is not entitled to vote for the borough in respect of the 
 qualification therein contained, he being on the list for 
 voting in respect of another qualification.. The effect 
 of that is, that the voter is only to vote for the borough 
 in respect of one qualification. But section 24 of the 
 Reform Act takes away the freeholder's right of voting 
 for the county in respect of his interest in a house, 
 shop, &c., which he occupies in a borough, of such value 
 as would confer on him the right of voting for the 
 borough, whether he shall or shall not have actually 
 acquired the right to vote for such borough in respect 
 thereof. The present case clearly falls within the words 
 of that section, and its applicability is, in my opinion, 
 in no way qualified by the Act of 1878. 
 
 I am therefore of opinion that the decision of the 
 Revising Barrister should be reversed with costs. 
 
 BowEN, J. I am of the same opinion. One matter 
 pointed out by Mr. Hall is almost a reduetio ad 
 absurdwm of the argument on the other side. If the 
 Revising Barrister's view were correct, the right to the 
 coiinty franchise would, in the case of a person similarly 
 situated to the respondent, be made to depend on the 
 
288 MICHAELMAS SITTINGS. 
 
 1881. accident whether the borough or county revision took 
 Chilcott place first. A further absurdity is that, if at the borough 
 BuLLBN. revision a person similarly situated were to omit to 
 select the entry to be retained for voting under 
 sec. 28, sub-s. 14, of 41 & 42 Vict. c. 26, inasmuch as 
 the Revising Barrister would then have to select the 
 entry, an arbitrary power would be vested in him of 
 deciding, as he chose, whether such person should, or 
 should not, have a county vote. 
 
 The decision of the Revising Barrister must be 
 reversed with costs. 
 
 Decision reversed. 
 
 Solicitors. — For Appellant, J. E. Fox & Go. 
 For Respondent, /. A. Bartrum. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THK 
 
 QUEEN'S BENCH DIYISM 
 
 OF 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDER STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DORING 
 
 MICHAELMAS SITTINGS, 1882, 
 
 IN THE 
 
 FORTY-SIXTH YEAR OF QUEEN VICTORIA. 
 
 Ancketill, Appellant ; Baylis, Respondent. 
 
 ^T a Court held on the 29th day of September, 1882, 1882. 
 by the Revising Barrister appointed to revise the list 
 
 of voters for the borough of Chelsea for the said year, commence- 
 the appellant duly objected to the respondent being ™*^?f °^ *^^ 
 retained on the list for the parish of Kensinaton of*, ^?"^f "^^^ 
 
 '■ " whoUy let out 
 
 persons entitled otherwise than as lodgers to vote at '" rooms so as 
 
 to constitute 
 
 the election of members for the said Parliamentary eauh tenant 
 
 the occupier of 
 borough. a"dweUing- 
 
 house" with- 
 in 30 & 31 Vict. 0. 102, s. 3, and 41 & 42 Vicb. c. 26, s. 5, but during the qualifying yea; 
 one of the tenants relinquished the tenancy of his room, and gave up his keys to 
 the landlord, who took the usual steps to re-let, but without exercising any actual 
 control over the house, held (affirming the decision of the Queen's Bench Diviiion) 
 that these facts did not aSect the ttatui ai the remaining tenants, and consequently 
 that each of such tenants was entitled to the borough franchise as the inhabitant 
 occupier of a "dwelling-house." 
 
290 MICHAELMAS SITTINGS. 
 
 1882. The following facts were established by the evidence. 
 
 Anoketill The respondent had occupied for upwards of twelve 
 Batlis. calendar months previously to the 15th July, 1882, as 
 his residence, a room- in a dwelling-house, situate within 
 the said parish, as sole tenant, at a weekly rent. He 
 had the right of ingress and egress by the stairs of the 
 house, passage, and front door. The room was let un- 
 furnished, and furnished by the respondent. 
 
 The room was rented by the respondent from the 
 tenant of the entire house (called hereafter the land- 
 lord), who held of the owner of the house at a yearly 
 rent. The respondent had a key to his room door, and 
 also a key (one of several) to the front door of the 
 house. 
 
 The entire house was rated for the poor rates during 
 the qualifying period, but the room occupied by the 
 respondent was not separately rated. AH rates had 
 been duly paid. 
 
 At the commencement of the qualifying period all 
 the rooms in the house were let to tenants as their 
 residences with the like rights as to ingress and egress 
 as the respondent had. 
 
 During the qualifying period a tenant of another 
 room in the house relinquished the tenancy of such 
 room, and gave up the key of the room, and also his 
 own key of the front door, to the landlord, who there- 
 upon took the usual steps to obtain a new tenant of the 
 vacated room. 
 
 During no portion of the qualifying period did the 
 landlord actually reside in the house or any part of it, 
 either himself or by any servant, or attempt to exercise, 
 or in fact have, any control over it, except such control 
 (if any) as may have been by law conferred on him by 
 reason of the vacation of the room by the outgoing 
 
XLVI VICTORIA. 291 
 
 tenant, as before mentioned, and delivery up to him 1882. 
 as the landlord of the key of the outgoing tenant's Anoketill 
 room, and of the outgoing tenant's front door key. No batus. 
 services were rendered by the landlord to the re- 
 spondent. 
 
 It was contended, on behalf of the objector, that, on 
 the vacation of the room by the tenant of another 
 room, as aforesaid, and the delivery up by such out- 
 going tenant cf the key of his room and the key of the 
 front door, the landlord thereupon ipso facto was by 
 law restored to such control over the house as to change 
 the status of the respondent from that of inhabitant 
 occupier to the status of lodger in his room, and that 
 the respondent having been during part of the qualify- 
 ing period an inhabitant occupier of, and in other part 
 a lodger in, his room, was not entitled to be retained on 
 the occupier's list. 
 
 The Revising Barrister overruled the objection, being 
 of opinion that the respondent had continued to be an 
 inhabitant occupier during the whole of the period of 
 qualification. 
 
 Due notice of appeal was given as well in the case 
 of the respondent as in that of other persons similarly 
 situated, and the Revising Barrister consolidated the 
 appeals. 
 
 If the Court should be of opinipn that the Revising 
 Barrister's decision was wrong, the several names in the 
 •schedule were to be struck out from the lists, otherwise 
 they were to remain. 
 
 Webster, Q.C. {Crump with him), for the appellant, 
 contended, on the authority of a passage in the judg- 
 ment of Brett, L.J., in Bradley v. Baylis (a), that where 
 
 (a) Ante, p. 234 ; S. C. L. R. 8 Q. B. D. 236. 
 
 y2 
 
292 MICHAELMAS SITTINGS. 
 
 1882. at the commencement of the qualifying year a house 
 Anoketill had been wholly let out in separate rooms, so as to 
 Baylis. constitute them "dwelling-houses" within 30 & 31 
 Vict. c. 102, s. 3, and 41 & 42 Vict. c. 26, s. 5, but 
 during the qualifying year one of the tenants vacated 
 his room, and gave up his keys to the landlord, the 
 legal effect of such a step was to reduce the status of 
 all the other occupiers in the house from that of in- 
 dependent tenants to that of lodgers. 
 
 [He referred also to Morton v. Palmer (a), and Ness 
 V. Stephenson (b).] 
 
 G. M. Freeman, for the respondent, contended that 
 nothing done behind the back of a tenant occupier 
 between his landlord and a third party could affect the 
 legal status of the tenant, and, at all events, that nothing 
 had taken place in the present case which could give to 
 the landlord that control over the premises which, ac- 
 cording to the authorities, was essential to deprive a 
 tenant occupier of his status, as such. 
 
 He cited Thompson v. Ward and Ellis v. Burch (c), 
 Score V. Huggett (d), and Toms v. Luckett (e). 
 
 Webster, Q.C., leplied. 
 
 Lord Coleridge, C.J. The decision of this case turns 
 -on the combined effect of the provisions of two Acts of . 
 Parliament, "The Representation of the People Act, 
 1867," and "The Parliamentary and Municipal Regis- 
 tration Act, 1878," as to which it has been said in the* 
 Court of Appeal that "Parliament has written nonsense." 
 I should not mj'-self have so described the effect of those 
 enactments, nor should I,. but for what has been said in 
 
 (a) 51 L. J. Q B. D. 7. (d) 1 Lutw. 198 ; S.C.I M. <fc 
 
 (b) L.K^Q.B.D.Uh. G.95. 
 
 (c) 1 Hopw. & Colt. .530 i S. C. {e) 2 Lutw. 19 xS.O.bC.B 23 
 L. JR. 6 a P. 327. 
 
XLVI VICTORIA. 
 
 293 
 
 the Court of Appeal, have thought that the language \&82. 
 used by the Legislature was so very complicated or Anoketill 
 obscure. Nevertheless, after what has been said in the BATwa. 
 Court of Appeal, I must be wrong in not thinking that 
 the construction of these enactments does involve some 
 great diflficulty. Whether, however, I am right or wrong 
 as to that, the decision of the Court of Appeal in 
 Bradley v. Baylis (a) is binding upon me, and I desire 
 to give the fullest effect to it. But I do not think that 
 the facts of this case bring it within the authority of 
 that decision. The facts on which I found my judg- 
 ment here are contained in two paragraphs of the case, 
 which are as follows : " During the qualifying period 
 a tenant of another room in the house relinquished 
 the tenancy of such room, and gave up the key of the 
 room, and also his own key of the front door, to the 
 landlord, who thereupon took the usual steps to obtain 
 a new tenant of the vacated room. During no portion 
 of the qualifying period did the landlord actually reside 
 in the house or any part of it, either himself or by any 
 servant, or attempt to exercise, or in fact have, any control 
 over it, except such control (if any) as may have been 
 by law conferred on him by reason of the vacation of 
 the room by the outgoing tenant." I am of opinion 
 that there is nothing in these findings to prevent the 
 occupiers of the rest of the house "from being occupiers 
 of dwelling-houses within the meaning of the two Acts, 
 and therefore that the decision of the Revising Barrister 
 should be affirmed. 
 
 I purposely abstain from giving any statement of the 
 reasons for my opinion, because I think it better that 
 the case should go before a higher Court unencumbered 
 
 (o) Ante, p. 163 ; S. C. L. R. 8 Q. B. D. 195. 
 
294 MICHAELMAS SITTINGS. 
 
 1882. by any observations of mine which might distract the 
 Ancketill attention of the Court from the argument, which will, 
 Batlib. 110 doubt, be presented to it. I am perfectly conscious 
 that, in deciding as I do, I am deciding contrary to 
 what appears to be laid down in a portion of the judg- 
 ment of Lord Justice Brett in Bradley v, Baylis {a), 
 who is reported in the Law Reports to have said that, 
 "Supposing during the qualifying year one of those 
 lodgers leaves, and the owner thereupon (as assuredly 
 he must) resumes the control over that unlet part, 
 according to my view of the statutes, immediately by 
 that act of his those people left in the house, who have 
 been householders, become lodgers again." Here there 
 is no doubt that during a portion of the qualifying year 
 a part of the house was unlet. It is found, no doubt, 
 that no control or attempt at control was exercised by 
 the landlord, that there was no residence on his part 
 either by himself or by anybody else ; but in one view, 
 at all events, of Lord Justice ^Brett's judgment it is 
 possible that this might be considered immaterial, and 
 that the fact of a single peison out of twenty going out 
 of possession, and the part of the house which had been 
 occupied by him remaining unlet for a space of twenty- 
 four hours, would operate by mere force of law to dis- 
 qualify the other nineteen, apart from any interference 
 or control of the landlord. If that be a correct con- 
 clusion from the Lord Justice's judgment, and can be 
 supported, it must be in the Court of Appeal. It was 
 not necessary to the decision in Bradley v. Baylis (a), 
 nor was it any part of the ratio decidendi. It is right, 
 however, that there should be leave to appeal, that the 
 matter may be decided by the Court of highest authority. 
 
 (a) L. It. 8 Q. B. D. 236 ; 5. C. (a) Ante, p. 163 ; S. C. L. R. 
 
 4)i«c, p. 234. 8 Q. iJ. Z). 196. 
 
XLVI VICTORIA. 295 
 
 Field, J. I have come to the same conclusion. The 1882. 
 
 question turns on sec. 3 of the Act of 1867, as inter- Anoketili, 
 preted by sec. 5 of the Act of 1878. Had it not been bayus. 
 for the great difficulties which appear to have existed 
 in the minds of many eminent judges, I do not think, 
 though it may seem presumptuous, that I should have 
 had any. great difficulty in construing these two clauses. 
 Upon the case before us I should have come to the 
 same conclusion that I do now, viz., that the voter was 
 entitled to have the franchise as the occupier of a 
 " dwelling-house " within the meaning of the two Acts. 
 The only ground relied on by Mr. Webster, in main- 
 taining an opposite view, is, that in this case there was 
 a period of time during which one, who previously had 
 admittedly been an occupier, by an act, not of his own,' 
 but of two other persons, viz., his landlord and some 
 one else, ceased to be an occupier, and was converted 
 into a lodger. It is difficult to see how a man's political 
 status and rights can in that way be affected. As 
 regards the authorities, the facts of this case do not 
 bring it within the canons laid down by the Court of 
 Appeal in Bradley v. Baylis (a) and the other two 
 cases. The nearest of those cases to the present is 
 Kirhy v. Biffen (b), the only distinction between' that 
 case and the present being, that in that case the tene- 
 ment of one of the occupiers did not, as here, become 
 vacant during the qualifying year. But for the observa- 
 tions of Lord Justice Brett in those cases, I should 
 here have entertained little, or no doubt. I agree that 
 the case is one in which there should be leave to 
 appeal. 
 
 (a) Ante, p. 163 ; S. C. L. R. (5) Ante, p. 174 ; S. C. L. R. 8 
 
 8 Q. B. D. 196. Q. B. D. 201.- 
 
296 MICHAELMAS SITTIKGS. 
 
 1882. Stephen, J. I am of the same opinion. I desire 
 
 ANOKEmL however to say that I feel a greater sympathy with the 
 Baylis. difficulties which appear to have been recognised by the 
 Court of Appeal than my Lord and my brother Field. 
 The enactments do not appear to me by any means 
 clear, though for the decision of the present case it is 
 unnecessary to say anything on the subject of those 
 difficulties. I rest my judgment entirely on the narrow 
 special ground that I do not see that the facts of this 
 particular case bring it within the authority of Bradley 
 V. Baylis (a). I think that the paragraphs of the 
 present case, which have been so much dwelt on, fail 
 to show that any such control was exercised by the 
 landlord as is assumed in Bradley v. Baylis (a) to be 
 necessary in order to convert the occupier of a " dwelling- 
 house " into a lodger. Mr. Webster has asked us, in effect, 
 to add to the existing enactments this somewhat special 
 provision, that, if during the qualifying period any one of 
 the persons separately occupying as dwellings part of a 
 given house should leave it, and so the place he occupied 
 become vacant, thereupon for that year all the other 
 occupiers should lose their qualifications. Except, as I 
 have said, that I am more struck with the difficulties of 
 the sections than the other members of the Court, I agree 
 entirely with all that has been said. 
 
 I also agree that there should be leave to appeal, and 
 for the same reasons. 
 
 [The appellant having appealed from this decision, 
 the case came on (Dec. 15) in the Court of Appeal.] 
 
 Crump (Webster, Q.C., with him) for the appellant. 
 The Revising Barrister's decision in favour of the vote, 
 
 (<i) Ante, p. 163 ; S. C. L. R. 8 Q. B. D. 195. 
 
XLVl VICTORIA. 297 
 
 which the Court below has upheld, was wrong. The 1882. 
 right to the vote must necessarily exist during the Ancketill 
 whole of the qualifying year. Here it has not done so. batlib. 
 From the moment that a room in the house, where the 
 qualification was claimed, was vacated, the landlord became 
 in legal construction the occupier of the house. The 
 surrender of one room in the house to him at once 
 affected the legal status of all the other occupiers, and 
 converted them ipso facto from occupiers into lodgers. 
 It is true that extreme cases may be put where the 
 rule, which is now contended for, would operate with 
 hardship. But extreme cases cannot test the law. 
 The house might be wholly let out in tenements only 
 for the first day of the qualifying year, and during the 
 remainder of it a portion of the house be unlet, so that 
 of that portion the landlord would after the first day be 
 in constructive occupation. How would such a state of 
 things affect the position of the tenants of the other 
 portions of the house ? Would they in such a case 
 continue occupiers of dwelling-houses throughout the 
 whole of the qualifying year ? If that view were adopted, 
 then could it be maintained that the mere circumstance 
 of a portion of the house being unlet on the first day of 
 the qualifying year reduced their position to that of 
 lodgers ? The best test, it is submitted, for ascertaining 
 whether the status of an inmate is that of a lodger in, 
 or occupier of, a dwelling-house, is that established by 
 authority, viz., whether the landlord has, or has not, the 
 legal control over the premises. It may be said that 
 actual, and not legal control, forms the true criterion, 
 but actual control would be a criterion open to the 
 same difficulties as legal control. Actual control might 
 exist merely for a day, and be quite as transient in its 
 character as legal control. The judgments of the Court 
 
298 MICHAELMAS SITTINGS. 
 
 1882. of Appeal in Bradley v. Bayli& (a) are strongly in 
 Anoketill favour of the appellant's contention. They show in the 
 Baylis. fi^'s* place that the occupier and lodger franchises can- 
 not overlap, the occupation franchise being given, as is 
 there pointed out, to one who occupies otherwise than 
 as a lodger. If therefore here during any portion of 
 the qualifying year the occupation was that of a lodger, 
 the vote must fail. It is for the voter to prove that 
 during no part of the qualifying year has his status as 
 an occupier been interfered with. The judgment of 
 Brett, J., in Bradley v. Baylis (b) deals expressly with 
 the present poiut and its language is unqualifiedly in 
 the appellant's favour. Brett, L.J., there said : " Sup- 
 posing during the qualifying year one of those lodgers 
 leaves, and the owner thereupon (as assuredly he must) 
 resumes the control over that unlet part, according to 
 my view of the statutes, immediately by that act of his 
 those people left in the house who have been house- 
 holders, become lodgers again." That shows that the 
 present case was clearly in the mind of the learned Lord 
 Justice, and the only question, therefore, is whether the 
 opinion he there expressed be, or be not, erroneous. 
 
 BoTupas, Q.C. {G. M. Freeman with him), for the 
 respondent. The persons claiming the franchise here 
 were during the qualifying year occupiers of rateable 
 hereditaments, and, if so, Bradley v. Baylis (a) estab- 
 lishes that, whether rated or not, they were entitled to 
 have the franchise as householders. It is immaterial 
 to the present inquiry whether such persons could, or 
 could not, also claim the franchise as lodgers. The 
 appellant must go the length of contending that the 
 
 (a) Ante, p, 163 ; S. C. L. E. 8 (6) L. R. 8 Q. B. D. 236 ; S. C. 
 
 Q. B. D. 195. ante, p. 234. 
 
XLVI VICTORIA. 299 
 
 mere fact of having legal control over any portion of a 1882. 
 house necessarily renders the landlord rateable for the anoketill 
 whole of it. But the reasoning of the judgment in B^Yua. 
 Smith v. Overseers of St. Michael, Cambridge (a) is 
 clearly adverse to such a contention ; and Reg. v. The 
 Assessment Committee of St. George's Union (b), which 
 followed it, also proceeded upon similar reasoning. 
 The real question is in each case one of fact, viz., 
 whether the landlord has, or has not, agreed to give to 
 the inmate exclusive possession of the subject of occu- 
 pation — Allan V. Overseers of Liverpool (c). In 
 Bradley v. Baylis (d) it was laid down that the primd 
 facie test for ascertaining whether the inmate is a lodger 
 or tenant is not so much whether the landlord has the 
 control of the outer door, as whether he resides in 
 person or by his servants upon the premises. If he so 
 resides, the presumption is that his intention was to 
 control the occupation ; otherwise, that his intention 
 was to leave it free and uncontrolled. Thus in Ki/rby 
 V. Biffen (e), the ratio decidendi of the case was that 
 the landlord, not being resident, had not such a control 
 over the hall, staircase, and other conveniences, which, 
 it was admitted, remained undemised, as would reduce 
 the inmate to the position of a lodger. But residence is 
 no doubt only a test for ascertaining what agreement 
 has been entered into between the parties. Here it is 
 undisputed that at the outset the relation which existed 
 between the parties was that of landlord and tenant. 
 If so, how can that relation, which must necessarily 
 be the result of agreement, be altered without the 
 tenant's assent ? It is true that in Morton v. Palmer ( /) 
 
 (a) iE.&E. 383 8 Q. B. D. 195. 
 
 (i) L. R. 7 Q. B. 90. (e) Ante, p. 174; S. C. L. R. 8 
 
 (c) L.S.9Q. B. 180. Q. B. D. 201. 
 
 (d) 'Ante, p. 163 ; S. C. L. R. (/) 51 L. J. Q. B. J). 7. 
 
300 MICHAELMAS SITTINGS. 
 
 1882. the question was raised, though not determined, 
 Akcketill whether the relation between a lodger and his landlord, 
 _ ''■ being a personal one, could be terminated by the 
 
 landlord without the lodger's assent. But, if that 
 doctrine is to be extended and applied to cases where 
 the relation of landlord and tenant, as distinguished 
 from that of landlord and lodger, exists, so as to enable 
 a landlord to alter his tenant's status without his assent, 
 and contrary to the agreement which has been entered 
 into between them, it certainly seems a violation of 
 established principles. The dictum of Lord Justice 
 Brett which has been cited from Bradley v. Baylis (b) 
 is the only semblance of authority for such a proposi- 
 tion, and, even if that dictum was meant to bear the 
 interpretation which has been contended for, it was in 
 no way necessary to the decision of the case. 
 
 Orump replied. 
 
 Bagoallay, L.J. This is an appeal from a decision 
 of the Queen's Bench Division affirming that of the 
 Revising Barrister, who had retained certain voters on 
 the occupiers' list for the borough of Chelsea. I am 
 unable to take a different view of the case from that 
 which was taken by the Revising Barrister, as well as in 
 the Court below. The Act of 1867 created two dis- 
 tinct kinds of borough franchise, the occupation fran- 
 chise as owner or tenant, and the lodger franchise. In 
 the case of the occupation franchise it is sufficient, as 
 regards the qualifying subject, that it is rateable, but in 
 the case of the lodger franchise, it is essential that it 
 should be of the yearly value of £10. It is unnecessary 
 on the present occasion to discuss the provisions of the 
 Acts of 1867 and 1878, further than to say this, that, 
 
 (6) Ante, p. 234 ; S. C. L. R. 8 Q. B. D. 236. 
 
XLVI VICTORIA. 301 
 
 in order to guard against any questions which might 1882. 
 arise on the subject of separate occupation, the term Anokethl 
 " dwelling-house " is defined by sect. 5 of the later Act Baylis. 
 to "include any part of a house where that part is 
 separately occupied as a dwelling." There is no doubt 
 here that the portion of a. house occupied by Roberts 
 was separately occupied by him as a dwelling, and I 
 also assume that it was capable" of being separately 
 rated. The question is as to the character of Roberts' 
 occupation ; was it that of an occupying tenant, or was 
 it only the occupation of a lodger ? 
 
 It is curious that neither in the Franchise Acts, nor 
 in the Lodgers' Goods Protection Act (35 & 36 Vict. 
 c. 79) is any definition given of a lodger. That ques- 
 tion was, however, discussed by the Court of Appeal 
 last year in three cases, which were then under its 
 consideration. Bradley v. Baylis (a) and Morfee v. 
 Novis (b) were substantially similar cases in their facts, 
 but there was a clear distinction between the occupa- 
 tion in those two cases and that in the case of Kirby 
 V. Biffin (c). Those cases were indeed extreme cases 
 upon the one side of the line and on the other, while 
 the present case is one which lies between them. 
 Roberts, whose vote was in the present case objected to, 
 was one of several persons who each occupied a room 
 or rooms in a house under circumstances which, apart 
 from one circumstance which I will mention directly, 
 were admittedly sufficient to make them occupying 
 tenants. During the qualifying year one of the other 
 tenants in the house gave up the room which he had 
 occupied, and, in consequence, that part of the house 
 became at the disposal of the landlord. Whether or 
 
 (a\ Ante, p. 163 ; 5. C. L. E. 8 Q.- B. D. 200. 
 Q. B. D. 195. (c) AnU, p. 174 ; 5. C. L. R. 8 
 
 (6) Ante, p. 171 ; S. C. L. R. 8 Q. B. D. 201. 
 
802 
 
 MICHAELMAS SITTINGS. 
 
 1882. not it was subsequently let does not appear, but to my 
 
 Ancketill mind whether it was so or not is immaterial. The 
 
 V. 
 
 Batlis. status of the other occupying tenants was not in 
 my opinion in the slightest degree altered by the 
 circumstance that one tenant had given up his room. 
 It appears that when giving up his room, he also gave 
 up to his landlord the key of it, as well as a key which 
 he had of the outer door. To this extent, therefore, 
 the landlord had obtained control over a portion of the 
 house, viz., that he could get another tenant of the room 
 which had been vacated, though he had not obtained 
 control over such portions of the house as were in the 
 occupation of the other tenants. But for certain 
 observations made by Lord Justice Brett, in Bradley v. 
 Baylis (a), to the precise words of which I cannot but 
 think that an importance has been attached which was 
 never intended by Lord Justice Brett himself, I should 
 have thought there could be no possible doubt that the 
 principles enunciated as applicable in Bradley v. 
 Baylis (b) applied here. Lord Justice Brett is reported, 
 in Bradley v. Baylis (b), to have said : " Supposing, 
 during the qualifying year, one of those lodgers leaves, 
 and the owner thereupon (as assuredly he must) resumes 
 the control over that unlet part, according to my view 
 of the statutes, immediately by that act of his those 
 people left in the house, who have been householders, 
 become lodgers again.'' No doubt, at first sight, the 
 language there used does bear the construction for 
 which the appellant contends, but I cannot help think- 
 ing that the present case was not within the Lord 
 Justice's contemplation. I think that by resuming 
 control he must have meant a full and complete control, 
 
 (a) Ante, p. 163 ; S. C. L. R. 8 (b) L. R. 8 Q. B. D. 236 ; S. C. 
 
 Q. B. D. 195. Ante, p. 234 
 
XLVI VICTORIA. 303 
 
 of the same character in fact as the landlord would 1882. 
 
 have had if he had resided from the commencement, anokktill 
 That is certainly the, view which I should attribute to Batlis. 
 the Master of the KoUs, from the language used by him 
 as to the circumstances which would constitute an 
 occupier and a lodger. The extreme diflficulty of form- 
 ing an exhaustive definition of a lodger was in that 
 case pointed out, and it was said that in each case regard 
 must be paid to the particular circumstances. If, how- 
 ever, Lord Justice Brett did really intend to use the 
 language which he is reported to have used, in the sense 
 contended for by the appellant, then I must respectfully 
 dissent from his conclusicto. It formed no part of his 
 judgment in the case before him, and was at most 
 only put by him by way of illustration. 
 
 I am of opinion here, that the decision of the Court 
 below was correct, and that the appeal must be 
 dismissed. 
 
 Sir James Hannen. I am of the same opinion. 
 As regards the general question, after the full discus- 
 sion which it received in Bradley v. Baylis (a), there is 
 no necessity to enter upon it here. The guiding 
 principle has been- clearly laid down, but there still 
 remains the application of it to the particular facts of 
 each case. Tn the present case we start with the 
 admission that at the outset the house was wholly let 
 out to persons in the position of occupying tenants, and 
 not of lodgers. The question, therefore, is whether 
 their status as occupying tenants was altered to that 
 of lodgers by the circumstance of one room in the house 
 becoming vacant. That there is great difficulty in 
 defining a lodger as distinguished from an occupying 
 
 {a) Ante, p. 163 ; S. 0. L. R. 8 Q. B. D. 195. 
 
304 MICHAELMAS SITTINGS. 
 
 1882. tenant is undoubtedly true. One circumstance which 
 Ancketill ^^ probably of the most weight in determining the 
 Batxis inmates' status in a particular case is whether the 
 landlord does, or does not, reside in the house. Where 
 the landlord resides in the house, and lets out some of 
 the rooms in it, usually he intends to exercise a general 
 control over the house, and the inmates submit to that 
 general control. On the other hand, where the land- 
 lord does not reside in the house, the relation of those 
 to whom rooms are let towards the landlord is usually 
 one of independence. But the fact of the landlord 
 being resident, or non-resident, in the house is not 
 conclusive. No one would contend that the inmates 
 of independent buildings, built in flats, or like chambers 
 in the Temple, would be lodgers, because the landlord 
 resided on the bottom floor, or because there was a 
 porter there, or a concierge, according to the usage 
 with which we are familiar on the Continent. In 
 such cases although the landlord resides on the 
 premises, either in person, or by his servant, there is a 
 separate occupation by the several tenants. Where, 
 when the relation between the parties commenced, 
 the relation of landlord and tenant was created, I 
 should say that it continues, unless there be something 
 from which it can be inferred that the tenant has 
 agreed or submitted to a change in the condition of 
 things between himself and his landlord. Again, in a 
 case where it is clear that the inmates are strictly 
 lodgers — for example, where the landlord resides in the 
 house and lets furnished lodgings — if the landlord goes 
 to live elsewhere, retaining one of the rooms and not 
 giving up his right to come into the house, I should 
 say that the fact of the landlord living elsewhere would 
 not change the status of the lodgers into that of 
 
XL VI VICTORIA. 
 
 305 
 
 occupiers. lu BixiUeij v. Btylis (a) Lord Justice 1882. 
 Brett said that, where the landlord has gone out of Ancketill 
 the house, and given up all control over it, that would bati-is. 
 make a difference. Then, on the other hand, take stich 
 a case as the present, where the tenants have come in 
 as occupiers, the mere fact of one of the rooms be- 
 coming vacant would not, in my opinion, alter their 
 position from that of occupying tenants. If the land- 
 lord had in fact come in, either in person, or by his 
 agents, and had exercised a general control over the 
 whole house, that would be a circumstance from which 
 it might be inferred that the tenants had acquiesced. 
 But, in the absence of any such conduct on the land- 
 lord's part, the circumstances which previously existed 
 must be presumed to continue. 
 
 LiNDLEY, L.J. — I am of opinion that the view 
 taken by the Revising Barrister and in the Court 
 below was correct. We start with the admitted fact 
 that Roberts was originally an occupier as distin- 
 guished from a lodger. The only question is, whether 
 the facts which are stated in this special case are such 
 as to convert him into a lodger. I adhere to what 
 I said on a former occasion (b), viz., that the word 
 " lodger " involves the idea of a personal relation 
 between the lodger and some person with whom he is 
 lodging, and I think that that relationship is one which 
 it is more easy to destroy than to create without the 
 lodger's consent. At present, I do not see how an 
 occupier can, without his consent, be converted into a 
 lodger, though I do see how, as is pointed out in Morton 
 
 (a) Ante, p. 163; S. 0. L. R. 8 
 Q. B. D. 195. 
 
 (6) 51 4 /. Q. B, D. 11. 
 
306 MICHAELMAS SITTINGS. 
 
 1882. V. Palmer {a), a person can cease to be a lodger by the 
 Ancketill. act of his landlord. The question which we have to 
 Baylis. consider here is, whether a person, who admittedly 
 was an occupier, has been changed from an occupier 
 into a lodger, because some other person, who was also 
 an occupier in the same house, has given up his 
 tenancy. I am of opinion that no such change has 
 taken place, but that the occupier remains an occupier, 
 as before. If Lord Justice Brett meant to say that 
 under such .circumstances as the present an occupier 
 would lose his character of occupier, that is a view 
 to which I cannot assent. I do not think, however, 
 that Lord Justice Brett ever intended to go the 
 length of that proposition, or that he would so hold in 
 regard to the present case, if he were a member of the 
 Court. For these reasons I am of opinion that the 
 appeal should be dismissed. 
 
 Judgment affirmed. 
 
 Solicitors — For appellant, Lee & Pembertons. 
 For respondent, Baylis & Pearce. 
 
 (a) 51 L. J. Q. B. D. 7. 
 
xuvi vicrroRiA, . S07 
 
 Druitt, Appellani;; Lane, Respondent. 
 
 'J'HIS was a special ease stated by the Revisiug Bar- 1882. 
 
 rister for the Southern Division, of the county of ^U 
 
 Southampton. plaitwhidi the 
 
 The case, after stating the facts in reference to the Ke^sing Bar- 
 
 ' o rister had m- 
 
 vote of the claimant Arthur William Lane, and the tended to con- 
 solidate (in- 
 decision of the Revising Barrister in favour of the vote, dorsing on the 
 
 case the worf's 
 
 proceeded as follows : — " consolidated 
 
 appeal ") was 
 defective by 
 " The cases in the schedule hereto were precisely similar. reason of the 
 
 " If I was right in my determination, the list is to be left as settled person, whose 
 
 by me ; if I was wrong, the name of Arthur William Lane, and tl*6 Rovisin 
 
 two names in the schedule, are to be erased. Barrister had 
 
 " (Signed) A. M., indorsed as 
 
 respondent, 
 
 " Revmng Barrister. ' not having 
 
 consetiled to 
 
 Then followed the schedule containing the names of peann beh^f 
 two persons, with the particulars of their respective Ihe'^omrver- 
 places of abode, and qualifications. f.Zl'ir 
 
 Below the schedule came the appellant's declaration, peared in the 
 
 '- "- schedule : 
 
 in the usual form, " I appeal from this decision," Held, that 
 
 such defect, 
 
 (signed) " James Druitt," but there was no entry of any although fatal 
 
 to the consoli- 
 
 declaration on the part of a respondent. dation of the 
 
 The indorsement on the case was as follows : — " 1882, ^^tct. "."is," 
 County of Southampton, Southern Division, C/iris^ ^■^"j.it^^"^"*. 
 church Polling District, Christchurch Parish, James ^^y^^^^^^sl^ 
 Druitt appellant, Arthur William Lane respondent, ««"■ *2. 
 consolidated appeal, special ease, 9th October, 1882." 
 
 7, 2 
 
308 MICHAELMAS SITTINGS. 
 
 1882. (Then followed the signature of the Revising Barrister, 
 Driiitt and below it the wtrds " James Druitt, of High 
 Lane. Street, Christchurch, Hants, Arthur William Lane, 
 32, Arlington Grove, Penge, Surrey." 
 
 Hooper for the respondent. There is a preliminary 
 objection to the hearing of this appeal ; viz., that the 
 statutory requirements of 6 Vict. c. 18, s. 44 (which 
 section has reference to consolidated appeals) have not 
 been complied with. Firstly, the appeals have not been 
 properly consolidated ; and secondly, if they had, no one 
 has consented to answer the consolidated appeal on 
 "behalf of the parties interested. 
 
 [Stephen, Ji. The objection seems only to affect the 
 right of appeal, so far as it relates to the persons in the 
 schedule.] 
 
 The Court called upon /. G. Garter, who appeared for 
 the appellant, to answer the objection, so far as it related 
 to the persons in the schedule. 
 
 /. C. Carter for the appellant. The statements of the 
 
 case show that this was intended to be a consolidated 
 
 appeal, and the Revising Barrister has expressly stated 
 
 that it was intended to be so by indorsing upon it 
 
 " consolidated appeal." The name of Arthur William 
 
 Lane, a person interested in the appeal, is indorsed 
 
 upon the case as respondent; and the only question 
 
 is whether, as the person made respondent by the 
 
 Revising Barrister, he represents the interests of the 
 
 persons in the schedule. It is submitted that he must 
 
 be taken to do so. The substance of what sec. 44 
 
 requires is, that some one should be made respondent 
 
 who is himself interested in the appeal, and who con- 
 
XLVI VICTORIA. 309 
 
 sents to represent the other persons who are similarly 1882. 
 interested. Deuitt 
 
 [Lord Coleridge, C.J. Sec. 44 says " interested and 
 consenting." In what way does the consent appear ?] 
 
 The name of the respondent is indorsed upon the 
 case. Having it in his power to decline to support the 
 Revising Barrister's decision, he has not declined to do 
 so ; and, under these circumstances, it must be taken 
 that he has consented to support it. The judgment of 
 Brett, J., in Sherwin v. WhyTnan (a), shows that in his 
 opinion the provisions of sec. 44 are directory. 
 
 [Lord Coleridge, C.J. It is impossible that 
 Brett, J., could have meant to say that the provision 
 as to consent is directory.] 
 
 The Court, it is submitted, will infer here that the 
 respondent has consented. 
 
 Per Curiam. It is quite clear that the appeal must 
 be struck out, except as regards the case of Arthur 
 William Lane. 
 
 The appeal thereupon proceeded in regard to the 
 case of Arthur William Lane only ; and, after argu- 
 ment, his vote was disallowed. 
 
 Decision (as to ^. W. Lane) reversed. 
 
 Solicitors —For Appellant, Lovell, son, 4 Pitjield, for 
 
 Druitt & Druitt, Ohristchurch, Hants. 
 
 For Respondent — Robins, Southampton. 
 
 {a) 2 ffopw. & Colt. 185 ; 5. G. L. R. 9 C. P. 243. 
 
 Lane 
 
310 MICHAELMAS SITTINGS. 
 
 Friend, Appellant ; Towers, Kespoudent. 
 
 1882. AT a Court held for the revision of the lists of^ voters 
 
 '"' for the city of Exeter, the appellant duly objected to 
 
 BariStCT'has tli^ name of the respondent being retained on the 
 4?T42"fL. occupier's list, Form (D) No. 1 Division One, for the 
 " h^' 1 2^^t P^'i'ish of St. David, of persons entitled to vote at the 
 alter the de- election of members to serve in parliament for the said 
 
 Bcription of a _ . 
 
 qualification city, upon the ground that the qualifying property of the 
 
 in the third p ■ a- ■ 
 
 column of a respondent was of insumcient value. 
 
 from " house " The nature of the qualification in the third column 
 
 ing°houX" so ^^ *1^® ^^^^ '^'^^ described as house. 
 
 as to describe rpj^^ ^^Qg^ yearly value of the property was less than 
 
 the qualmta- j j r s: j 
 
 tion created £10 
 by 30 & 31 ■ 
 
 Vict. c. 102, The respondent had during the whole of the qualifying 
 
 8. 3. 
 
 Whether such period been in occupation of the said property as tenant, 
 
 be sufficiently and had used and occupied the same as his dwelling- 
 described by -i 
 
 the word house. 
 
 "house " 
 
 without 
 
 It was contended by the objector (inter alia), (1) 
 aujendment, ^^xbX the description " house " was by ss. 5 and 8, and 
 
 qumre. ^ •' 
 
 the schedule and notes thereto, of the Parliamentary 
 and Municipal Registration Act, 1878, so appropriated 
 to the franchise created by the Reform Act, 1832, as to 
 exclude proof under it of a "dwelling-house" within 
 see. o of the Representation of the People Act, 1867 ; (2) 
 that the RcNising Barrister had no power to amend the 
 
XLVl VICTORIA. 311 
 
 said description by substituting "dwelling-house" for 1882. 
 " house," on the ground that by so doing he would be Friend 
 inserting another qualification; (3) that the several towers. 
 cases cited on behalf of the respondent had been decided 
 prior to the passing of the Parliamentary and Municipal 
 Registration Act, 1878. 
 
 On behalf of the respondent it was contended (1) that 
 the description of the nature of the qualification as 
 "house'' was sufficiently comprehensive to include 
 " dwelling-house ; " (2) that the term " house " was not 
 dependent for its nomenclature on the fact of the 
 value being £10, or under that sum. That it was no 
 more necessary, in any case, in the third column 
 to prefix the word " dwelling " to " house '' than it was 
 under the Reform Act to add " value of £10 per 
 annum," or under the Parliamentary and Municipal 
 Registration Act, 1878, to add " separately occupied as 
 an inhabitant occupier;" for, in each case, the value 
 and the occupation of the house by dwelling in it was 
 a subject of proof only, and not of description ; (3) that 
 by Form D. of the schedule to the said Act of 1878, 
 given for a person entitled under any right conferred 
 by the Reform Act, J 832, or by sec. 3 of the Repre- 
 sentation of the People Act, 1867, " house '' was used 
 and not "dwelling-house" ; (4) that it was not necessary 
 under the Reform Act to follow the woi'ds of the 
 statute, and therefore not necessary to do so under the 
 Representation of the People Act, 1867 ; (5) that if 
 any amendment was required, it was in the Revising 
 Barrister's power, and obligatory on him, to amend by 
 prefixing the word " dwelling " to " house " under sec. 28 
 of the Parliamentary and Municipal Registration Act, 
 1878. 
 
 The Revising Barrister decided that the term " house " 
 
312 MICHAELMAS SITTINGS. 
 
 1882. was sufficient to include "dwelling-house," and was not 
 Friend so appropriated to the franchise created by the Reform 
 TowiBKs. Act, 1832 (sec. 27), as to exclude proof under it of a 
 " dwelling-house '' under sec. 3 of the Representation of 
 the People Act, 1867, but that it was a matter of evi- 
 dence whether a house was a " house " as required by the 
 Reform Act, 1832, of the value of £10, or whether it 
 was a " dwelling-house '' under the Representation of 
 the People' Act, 1867; and although he considered it 
 not absolutely necessary that he should, he did, for the 
 purpose of more clearly defining the qualification, amend 
 the description by adding the word " dwelling " to 
 " house," and retained the name of the respondent on 
 the list. 
 
 If his decision was wrong, the register was to be 
 amended by erasing the name of the respondent and 
 others in the schedule, the appeal being a consolidated 
 .one. 
 
 Charles, Q.C. (Bucknill with him) for the appellant. 
 The Revising Barrister has held the description of the 
 qualification sufficient as it stood, and, if not, that he 
 had power to amend it. It is submitted that he was 
 wrong on both points. To the " dwelling-house " 
 franchise created under sec. 3 of the Representation of 
 the People Act, 1867, inhabitancy and separate occupa- 
 tion are necessary incidents, but not to the "house" 
 franchise created under sec. 27 of the Reform Act. 
 That the legislature intended to treat these two kinds 
 of franchises as distinct, is shown by the language of the 
 Act of 1878 (41 & 42 Vict. c. 26). ' That enactment, 
 while enlarging the scope of the words "house" and 
 "dwelling-house," evidently assumes them to be fran- 
 chises distinct in character. Sec. 5 in d€fining a house 
 
XLVI VICTOEIA. 313 
 
 for the purposes of the Eeform Act enacts, "in and 1882. 
 
 for the purposes of the Reform Act, 1832 Friend 
 
 the terms 'house, warehouse, &c.,' shall include any part of towebs. 
 a house where that part is -separately occupied for the 
 purposes of any trade, business, or profession"; in de- 
 fining a dwelling-house for the purposes of the Eepre- 
 sentation of the People Act, 1867, it enacts, " in and for 
 the purposes of the Representation of the People Act, 
 1867, the term ' dwelling-house ' shall include any part 
 of a house where that part is separately occupied as a 
 dwelling." Sec. 8 gives to the schedule and notes 
 thereto the same " effect as if enacted in the body of 
 this Act." Then note P expressly says : " The nature 
 of the qualification should be entered as nearly as 
 possible in the words of the statute conferring the fran- 
 chise, for instance : — (a) The nature of the qualification 
 of a person under the Reform Act, 1832 (2 & 3 "Will. 4, 
 c. 45), or under the Municipal Corporation Acts, should 
 be stated thus : ' house ' . . . . ; (6) The nature of 
 the qualification of a person under sec. 3 of the Repre- 
 sentation of the People Act, 1867, should be stated thus : 
 ' dwelling-house.' " The nature of the two qualifications 
 being thus virtually declared by Parliament to be distinct, 
 the requirement that the description of them should be 
 also distinct is one that is imperative. Again, sec. 26 
 requires that in the notice of objection the grounds of 
 objection should be specified. The grounds would 
 obviously be different according as the franchise claimed 
 was a " house " under the Act of 1832, or a " dwelling- 
 house " under the Act of 1867 ; a circumstance which 
 again points to the distinctness of the franchises. It is 
 true that, where two franchises overlap, as where a 
 person claims under the Reform Act for the occupation 
 of a house, which he inhabits himself, it is no objection 
 
314 
 
 MICHAKLMAS SITTINGS. 
 
 1882. to his describing his qualification as a dwelling-house. 
 Friend that this would also describe a qualification under the 
 TowBBs. Representation of the People Act, 1867. Although as 
 a description under the Reform Act " dwelling-house " 
 is an unnecessarily minute description, this circum- 
 stance jvill not prevent the acquisition of the house 
 franchise under the description of "dwelling-house." 
 Townshend v. Overseers of St. Marylebone (a). The 
 broad distinction between that case and the present is 
 that whereas every dwelling-house is a house, the con- 
 verse proposition is not true, inasmuch as every house 
 is not a dwelling-house. Ford v. Boon (b) was, in 
 principle, similar to Townshend v. Overseers of St. Mary- 
 lebone (a). There, as in Townshend v. Overseers of 
 St. Marylebone (a), the whole qualification was de- 
 scribed, and the description proved ; and Townshend 
 V. Overseers of St. Marylebone (a) was expressly relied 
 on by the Court as the authority for their decision. 
 
 Secondly, assuming the description to be wrong, if not 
 amended, the case was not one in which the llevising 
 Barrister had power to amend. Sec. 28, sub-s. 13, 
 expressly says that the Revising Barrister shall not " be 
 at liberty to change the description of the qualification 
 as it appears in the list except for the purpose of more 
 clearly and accurately defining the same." If, as is 
 contended, the amended description would describe a 
 different qualification, the amendment was not within 
 the powers of the section. It is true that sub-s. 13 
 commences with the words " except as herein provided," 
 so that the question still remains whether the case falls 
 within sub-s. 12. It is submitted, however, that sub-s. 
 12 only applies where the matter stated in a list or 
 
 (rt) 1 IIopiv. tt- Colt. 606 ; .s'. C. (b) 1 //ojxc. <£■ Colt. 668 ; 
 
 L. a. 7 C. p. 143. L. M. 7 C. P. 150. ' 
 
 , C. 
 
XLVI VICTORIA 315 
 
 claim, or proved to the Revising Barrister, is in the 1882. 
 judgment of the Revising Barrister, insufficient in law Fbienl> 
 to constitute a qualification of the nature or description xowebs. 
 stated or claimed. Here the Revising Barrister has 
 found the description sufficient without amendment, 
 and, in amending as he did, " more clearly to define " . 
 the qualification, he obviously intended to act, not 
 under sub-s. 12, but under sub-s. 13. 
 
 [Lord CoLER[DGE, C.J. Is it material under which 
 sub-section he intended to act, if he had the power ? The 
 assumption on which he amended was, that the qualifi- 
 cation was insufficient as it stood without an amend- 
 ment.] 
 
 Bompas, Q.C., for the respondent, was not called upon. 
 
 Lord Coleridge, C.J. I am of opinion that the 
 decision of the Revising Barrister was correct, and 
 must be affirmed. Upon the argument addressed to us 
 by Mr. Charles that the word " house " is not a sufficient 
 description of the qualification conferred by the Act of 
 18G7 on the inhabitant occupier of a dwelling-hoyse I 
 express no opinion. I was certainly impressed by the 
 ingenuity of Mr. Charles argument, but it is unneces- 
 sary to decide that question, inasmuch as sec. 28, sub-s. 
 12, of 41 & 42 Vict. 0. 26, exactly meets the present 
 case. That sub -section enacts: "Where the matter 
 stated in a list or claim, or proved to the Revising Bar- 
 rister in relation to any alleged right to be on any list, 
 is in the judgment of the Revising Barrister insufficient 
 in law to constitute a qualification of the nature or 
 description stated or, claimed, but sufficient in law to 
 constitute a qualification of some other nature or 
 description, the Revising Barrister, if the name is • 
 
31 C MICHAELMAS SITTINGS, 
 
 1882. entered in a list for which such true qualification in 
 
 Friend law is appropriate, shall correct such entry by inserting 
 
 TowEBs. such qualification accordingly." The words of that 
 
 sub-section are clearly applicable to the present case, 
 
 and I am of opinion that under it the amendment was 
 
 . rightly niade. I therefore avoid the difficult and subtle 
 
 question of overlapping franchises, inasmuch as it is 
 
 unnecessary for us to consider it, or to say whether the 
 
 word " house " sufficiently describes the qualification 
 
 which the Act of 1867 gives to the inhabitant occupier 
 
 of a dwelling-house. 
 
 Field and Stephen, JJ., concurred. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, S. D. Hamilton. 
 For Respondent, J. E. Fox & Co. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 QUEEN'S BENCH DIYISM 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDER STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DURING 
 
 MICHAELMAS SITTINGS, 1883, 
 
 IN THE 
 FORTY-SEVENTH YEAR OF QUEEN VICTORIA. 
 
 Geeenway, Appellant; Batchelob, Kespondent 
 
 (Aldkidge's Case). 
 A T a Court held for the revision of the lists of voters, 1883. 
 parliamentary and municipal, for the parish of St. 
 
 Andrew, Pli/mouth, within the borough of Plymouth, franchiseTn^'' 
 before the Revising Barrister for the borough^ *^® pSarf houses 
 appellant objected to the name of Charles Aldridge being separately 
 
 ^^ •> ^ o occupied IS not 
 
 retained upon the list of voters for Vintry ward of the confined to 
 
 _ _ parts of houses 
 
 said parish in the said borough. occupied for 
 
 ... ^ 1-1 !• business pur- 
 
 The name appeared on Division One, which confers poses, but in- 
 both the parliamentary and municipal franchise, as occupied for 
 
 « n the purposes of 
 
 follows :— dwelling. 
 
 "Aldridge, Charles \ 9, Batter Street \ dwelling-house | 9, Batter Street." 
 
318 MICHAELMAS SITTINGS. 
 
 1883. Charles Aldridge occupied, for the purposes of a 
 
 Grebnwat private dwelling only, two rooms at No. 9, Batter Street, 
 Batchblok i" which house there were four other residents. The 
 ^'^''case.r'^ landlord did not live on the prenaises. 
 
 It was contended on behalf of the appellant, that, 
 Aldridge only occupying a part of a house as a dwelling- 
 house, and not for the purposes of any trade, business, 
 or profession, the rooms so occupied did not constitute 
 a house so as to create a municipal qualification. 
 
 The Eevising barrister held that Aldridge was 
 entitled to the municipal as well as the parliamentary 
 franchise. 
 
 The question for the Court was whether Aldridge, 
 occupying only a portion of a house as a private 
 dwelling, was such a householder as to be entitled to 
 claim the municipal franchise. 
 
 R. 8. Wright for the appellant. The question in 
 this case is whether part of a hotise, which has been 
 separately occupied, is to be deemed a " house" within 
 ss. 9 and 31 of the Municipal Corporations Act, 1882 
 (4.5 & 46 Vict. c. 50), so as to confer the municipal 
 franchise, although the occupation has not been for the 
 purposes of any trade, business, or profession, but merely 
 for the purpose of a private dwelling. The 45 & 46 
 Vict. c. 50, s. 9, subs. 2, enacts, inter alia, that " a 
 person shall not be enrolled as a burgess unless he is 
 qualified as follows .... (b). Is on the fifteenth of 
 July in any year, and has been during the whole of 
 the then last preceding twelve months, in occupation, 
 joint or several, of any house, &c." Sect. 31 enacts: 
 " In and for the purposes of this Act — (a) The terms 
 hovjse, &c. include any part of a house, M-here that part 
 is separately occupied for the purposes of any trade, 
 
XLVIl VICTORIA. ■ 319 
 
 business, or profession." It is only, therefore, where 1883. 
 
 the part of a house is occupied for the purposes of any gkeekway 
 
 trade, business, or profession, that it can constitute a batohblor 
 
 « house " within that definition. '^^Ca™""'" 
 
 [Lord Coleridge, C.J. What construction do you 
 put upon the next paragraph — paragraph (b) of the 
 same section — " Where an occupier is entitled to the 
 sole and exclusive use of any part of a hotise, that part 
 shall not be deemed to be occupied otherwise than 
 separately by reason only that the occupier is entitled 
 to the joint use of some other part ? "] 
 
 That paragraph refers, as is submitted, to the case 
 contemplated in paragraph (a), viz., where part of a 
 house is occupied " for the purposes of any trade, 
 business, or profession.'' 
 
 [Mathew, J. The word employed in paragraph (a) 
 is not " mean "' but " include." ] 
 
 The language is taken from sec. 5 of the Par- 
 liamentary and Municipal Registration Act, 1878 (41 
 & 42 Vict, c. 26). That section, however, contains an 
 express enactment in regard to a dwelling house, which 
 is not found in the Act of 1882, viz., " in and for the 
 purposes of the Representation of the People Act, 1867, 
 the terai ' dwelling house ' shall include any part of a 
 house where that part is separately occupied as a 
 dwelling." 
 
 [Lord Coleridge, C. J. Can you assign any reason 
 why the Legislature should have made the distinction 
 which you suggest between the parliamentary and 
 municipal franchises? ] 
 
 A42 
 
320 • MICHAELMAS SITTINGS. 
 
 1883. The language of the Act of 1878 may possibly be due 
 
 Greenway to political exigencies, affecting only the parliamentary 
 Batoh'eloe franchise. The Court must not suppose that the 
 CsBe).°^^ parliamentary and municipal franchises are assimi- 
 lated, or that the Acts of 1878 and 1882 contain any 
 evidence of an intention to assimilate them. On the 
 contrary, the machinery introduced by the Parliamentary 
 and Municipal Eegistration Act, 1878, for breaking up 
 the lists into divisions goes distinctly to show that no 
 assimilation was intended. The Municipal Corpora- 
 tions Act, 1882, was simply a consolidation Act, passed 
 without any intention either to enlarge, or in any other 
 way to affect, the municipal franchise. 
 
 B. Coleridge, for the respondent, was not called 
 upon. 
 
 Lord Coleridge, C.J. I am of opinion that the 
 decision of the Eevising Barrister was right, and should 
 be affirmed. I agree that, if the Municipal Corpora- 
 tions Act, 1882, had not been passed, there would be 
 much to be said in favour of the view for which the 
 appellant's counsel contends. But to my mind sub-s. (b) 
 of sec. 31 of that Act puts the matter beyond reason- 
 able doubt, and places the municipal franchise in respect 
 of the sole and exclusive use of part of a liouse in a 
 similar position to the parliamentary franchise. It is 
 not questioned that, under the Parliamentary and 
 Municipal Eegistration Act, 1878, as expounded by the 
 Court of Appeal in Bradley v. Baylis (a), the voter in 
 the present case would be entitled to the parliamentary 
 franchise. I think that sec. 31, sub-s. (b) of the Act of 
 
 (a) AiUe, p. 163 ; 8. C. L. R. 8 Q. B. D. 195. 
 
XLVII VICTORIA. 321 
 
 1882 cannot be satisfied by any construction short of 1883. 
 this — that the words " any part of a house " were in- gkebnwat 
 tended to have the same legal meaning in that section b^tohelok 
 as had been already affixed to them by judicial decision (At-iibidse s 
 before the passing of the Act. It is as though the 
 Legislature had said, whereas judicial decisions have 
 established the position of the occupier of part of a 
 dwelling-house with respect to the parliamentary fran- 
 chise, be it enacted that the principle of those decisions 
 shall also extend to the municipal franchise. 
 
 Hawkins, J., concurred. 
 
 Mathew, J. I am of the same opinion. It must 
 not, however, be supposed from our decision that prior 
 to the Act of 1882 the occupation of part of a house - 
 separately rateable would not have conferred the muni- 
 cipal franchise. Looking to the language of the Act of 
 1878, 1 should be disposed to think that it would have 
 done so ; biit, as critical minds might see room for a 
 doubt on the subject, the Act of 1882 has now re- 
 moved it. 
 
 Decision affirmed. 
 
 Wright applied for leave to appeal, which was refused. 
 
 Solicitors — For Appellant, Pattisun, Wigg & Co., 
 for /. Greenway, Plymouth. 
 For Respondent, J. E. Fox & Co., 
 for R. L. Batchelor, Plymouth. 
 
322 
 
 MICHAELMAS SITTINGS. 
 
 Greem WAY, Appellant; Batchelor, Respondent 
 (Jacobs' Case). 
 
 1883. 
 
 Nov. 26. 
 
 A T a Court held for the revision of the list of voters, 
 parliamentary and municipal, for the parish of St. 
 
 In the revision . , . , „, i n -i -r, 
 
 of a buroagh Andrew, m the borough of Plymouth, before the Re- 
 made out in vising Barrister for the borough, the name of A hraham 
 under 41 & 42 Jcocobs WES objected to as follows : — 
 
 Vict. c. 26, a. 
 
 To Mr. Airahani Jacobs. 
 
 ' ' Kear 47, High Street. 
 " I hereby give you notice that I object to your name being re- 
 tained on (Division One of) the list No 1 for the parish of Saint Andreto 
 of persons entitled to vote at the election of members to serve in 
 Parliament for the parliamentary borough of Plymouth, on the following 
 grounds, viz.: — 
 
 " (1.) That you have not occupied for twelve months to July 15 the 
 
 qualifying property. 
 " (2.) That your occupation is not sufficient, or of a nature to create a 
 
 qualification for the parliamentary franchise. 
 " (3.) That the premises occupied by you are not of sufficient value. 
 " (4.) That the premises so occupied do not confer a right to vote. 
 " (5.) That the nature of your qualification is wrongly described. 
 "Dated the 21st August, 1883. 
 
 " (Signed) Richard Lewis, 
 
 " (Place of abode) 7, Prospect Place, 
 " On the list of parliamentary voters for the parish of 
 " Saint Andrew.^' 
 
 It was admitted that A. Jacobs, who did not appear 
 personally, had no sufficient qualification for the parlia- 
 
XLVII VICTORIA. 323 
 
 mentary franchise; but it was contended that the 1883. 
 
 notice of objection was bad, as far as referred to his greenwat 
 qualification as a voter for the municipal election, on Batchelob 
 the ground that the objection was directed solely against '"c'aeer 
 the parliamentary qualification, and that the municipal 
 qualification was not challenged ; and also that the 
 objector had described himself as only being on the list 
 of parliamentary voters for the parish of St. Andreiv, 
 and not as a municipal voter. 
 
 It was proved that Richard Lewis' name appeared 
 upon Division One, which confers both a parliamentary 
 and municipal vote. 
 
 The Revising Barrister held the objection signed by 
 Richard Lewis to be valid as regards Division One, 
 and that such objection challenged the voter's right to 
 both the parliamentary and municipal franchise ; and 
 also that he had the power to transfer the name of A. 
 Jacobs, who was properly objected to on Division One, 
 to Division Three, which only conferred the muuicipal 
 qualification on the voter. 
 
 The Revising Barrister was thereupon requested by 
 the appellant to transfer the name of A. Jacobs to 
 Division Three, which he consented to do upon having 
 proof of a qualification entitling him to be registered on 
 Division Three. No such evidence was forthcoming, 
 and the Revising Barrister therefore refused to insert 
 the voter's name on Division Three, holding that, 
 where a voter had been shown to be disqualified for one 
 division, he was not entitled to have his name placed 
 upon another until he had proved himself qualified to 
 be placed thereon. The Revising Barrister, therefore, 
 struck off the name of A. Jacobs from the lists 
 altogether. 
 
 The questions for the opinion of the Court were ■.• — • 
 
324 
 
 :\1U.'HAELMAS SITTINGS. 
 
 (Jacobs' 
 Case). 
 
 1883. 1. Wlietlier the ii.bu\ e form of objection was sufficient 
 
 Gkeenwat to call iu i_[nestion A. Jacobs' right to appear upon 
 Batchelor Division One as a parliamentary and municipal voter. 
 2. Whether or not, before transferring the name from 
 Division One to Division Three, the said A. Jacobs was 
 bound to prove his qualification. 
 
 If the Court should answer either of the above ques- 
 tions in the negative, then the names appearing in the 
 schedule annexed to the case were to be placed in 
 Division Three of the list of voters. 
 
 R. S. Wright for the appellant. The voter whose 
 name is struck off was entered in Division One as a 
 person entitled both to the parliamentary and the 
 municipal franchise. As regards his parliamentary 
 franchise, the notice of objection being in the statutory 
 form in the schedule to 41 & 42 Vict. c. 26 — Form (I.) 
 No. 2 (Parliamf3ntary) — was no doubt a valid notice, 
 but the municipal franchise of the voter has never been 
 objected to. The schedule provides the form in which 
 an objection should be taken to a municipal voter — 
 Form (I.) No. 4 (Municipal). By the 8th section of 
 41 & 42 Vict. c. 26, the forms in the schedule are made 
 a pai't of the Act, so that it is essential that in substance, 
 at all events, these forms should be adhered to. Here not 
 only has the municipal form not been adhered to, but 
 there has been no objection at all to the municipal 
 vote. That the a oter had not a sufficient parliamentary 
 qualification is admitted, and that, as a consequence, he 
 was liable to be transferred from Division One to 
 Division Three, under the powers conferred on the 
 Eevising Barrister by sec. 28, sub-s. 15, of 41 & 42 
 Vict. c. 26. That, it is submitted, is the course which 
 the Revising Barrister ought to have pursued, by 
 
XLVII VICTORIA. 325 
 
 placing the name of the voter " in the division in which 1883. 
 it should appear according to the result of the revision." gbbknway 
 But that his name should be struck off the lists alto- batchelob 
 gether, although the proper notices of objection had not ^ case^^ 
 been given to him, is contrary, as is submitted, to the 
 scheme of the Registration Acts, and no machinery is 
 provided to warrant it. The voter, knowing that he 
 has no sufficient parliamentary qualification, and that 
 his municipal qualification is not objected to, abstains 
 from attending in the Court of Eevision, and it is hard 
 if under these circumstances he is to be deprived of his 
 municipal- franchise. The parliamentary and municipal 
 franchises are by no means necessarily the same. Value 
 is immaterial to the municipal franchise ; men are 
 entitled to both franchises, women only to the muni- 
 cipal. That the voter's name, being entered in Division 
 One, was in a wrong division is not denied, but for the 
 fact of its being there he is not responsible. Its being 
 there is the overseers' act, not his. It is also true 
 that he might have claimed ; but his municipal fran- 
 chise not having been challenged, a claim in respect of 
 it would, it is submitted, have been superfluous. The 
 scheme of the Registration Acts is, that a voter shall 
 prove his qualification only so far as it is challenged. 
 Sec. 26 of 41 & 42 Vict. c. 26, requires the grounds of 
 objection to be specifically stated, and incorporates 
 sec. 7 of 28 & 29 Vict. c. 36, which provides that no 
 one shall be required to prove his qualification other- 
 wise than as it shall be called in question in the 
 grounds of objection. The voter's name being on the 
 list of voters, and his municipal qualification not ob- 
 jected to, the Revising Barrister had no power to call 
 upon him to prove his qualification, but was bound to 
 place him in the proper division. 
 
32C 
 
 MICHAELMAS SITTINGS. 
 
 1883. B. Coleridge, for the respondent, was not called upon. 
 
 Gkeenway 
 
 V, 
 
 Batchelor 
 
 (Jacobs' 
 
 Case). 
 
 Lord Coleridge, C.J. I am of opinion that the 
 decision of the Revising Barrister was right. The con- 
 tention for the appellant really comes to this, that when, 
 upon an objection being taken, it is proved or admitted 
 that the objection is fatal to the voter's name being re- 
 tained in Division One, that being the division which 
 confers both franchises, the Revising Barrister is abso- 
 lutely bound to transfer the name to another division, 
 without any proof of the voter's qualification to be 
 placed there. I am of opinion that that view cannot be 
 correct. If a valid objection be taken, either to the 
 parliamentary or municipal franchise, the voter's name 
 must come off Division One. Where any doubt exists 
 as to either qualification, then if he desires to be per- 
 fectly safe, he can make himself so by claiming according 
 to the facts of the case. 
 
 In the present case objection was taken, and in the 
 very words of the Act, to the name of the voter being 
 retained in Division One. The grounds stated were 
 admittedly fatal to his right to be in that division. 
 Accordingly his name was struck out. The Revising 
 Barrister was requested, however, to transfer the name 
 to Division Three, but he refused to do so without proof 
 of the voter's title to be in that division. I think that 
 in so refusing the Revising Barrister has exercised a 
 wise discretion. By the terms of the Act he is to place 
 the name " in the division in which it should appear 
 according to the result of the revision." Had he placed 
 it in a division in which the voter was not entitled to 
 appear, he v^rould, I think, have been clearly wrong. 
 
 Hawkins, J. I am of the same opinion. 
 
XLVII VICTORIA. 327 
 
 Mathew, J. I am of the same opinion, and I think 1883. 
 that sec. 28, sub-s. 15, of the 41 & 42 Vict. c. 26 is Gkeenwat 
 decisive of the question. " Where a list is made out in batchelor 
 divisions " the Revising Barrister is bound to place the Ca8°^.^ 
 name " in the division in which it should appear 
 according to the result of the revision," and by sub-s. 1, 
 he is to " correct any mistake which is proved to him to 
 have been made in any list." An objection fatal to the 
 voter's right to remain in Division One having been 
 made, the Revising Barrister very properly offered to 
 hear evidence, if it could be adduced, of the voter's 
 qualification to be placed in Division Three. No such 
 evidence was, however, adduced, and we must assume 
 that the voter had no such qualification. If he had not, 
 then can it be said that the Revising Barrister was 
 bound, nevertheless, by the Act of Parliament to place 
 the name of the voter in a division in which the voter 
 was not qualified to appear ? 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Pattison, Wigg & Co., 
 for J. Greenway, Plymouth. 
 For Respondent, J. E. Fox & Co., 
 for R. L. Batchelor, Plymouth. 
 
•328 JIICHAELMAS SITTINGS. 
 
 Druitt, Appellant ; Overseers of Christ- 
 CHTTRCH, Resporidents. 
 
 1883. n ASE stated by the Revising Barrister for the Southern 
 Division of the County of Southampton. 
 
 ^ut-chl^ge III the parish of Christchurch, in the Southern Divi- 
 
 '"tenement," ^^0° "^ ^^^ ^^^^ county, A. W. Lane and E. L. Lane 
 ^'*™^ ^f- claimed in respect of freehold rent-charges, 
 and 30 & 31 [The case set out the particulars of the claims.] 
 
 Vict. e. 102, ■- ^ . . 
 
 B. 5. Such The claimants were each entitled under two similar 
 
 rsnt-charge, t o o i 
 
 therefore, does deeds, dated the 1st day of December, 1881, respec- 
 county fran- tively, to the annual sum or yearly rent-charge of £2 
 be^ith"r oT '' charged upon a freehold messuage in Christchurch, to 
 yearly vllue ^°^^ ^^^ ^^^^ rent-charge unto the grantee and his 
 °f ^^5, required j^ggigjjg during the life of the grantor, to be paid and 
 mentioned payable in advance by two equal half-yearly payments 
 
 enactment, or -^ ■' 
 
 within some on the 1st day of December and the 1st day of June m 
 
 one of the p n i i • 
 
 exceptions each year, free of all deductions and charges, 
 thrforme™ Objection was duly made that the claimants were 
 
 ceptions,'^that seised for an estate for lives of rent-charges under the 
 of '' actual value of £5 per annum ; that such rent-charges were in- 
 
 and bona fide ^ ' ° 
 
 oooupation" is capable of actual and bond Me occupation; and that 
 
 inapplicable to ^ ./ j. 
 
 a rent-charge, the claimants therefore came within the disability 
 
 which, being 
 
 incorporeal, is created by 2 Will. 4, 0. 45, s. 18. 
 
 not a subject mi -n ■ • l-^ • r ■ ■ 1-1 
 
 of actual The Eevising Barrister was of opinion that the right 
 
 to the rent-charge, and the payment thereof before the 
 
XLVII VICTORIA. 329 
 
 last day of January, 1883, constituted an occupation of 1883. 
 the rent-charge sufficient to entitle the claimants to the druitt 
 franchise within sects. 18 and 26 of 2 Will. 4, c. 45, and oveksbIses op 
 decided accordingly to retain the names on the register, chtooh 
 
 If the Eevising Barrister was wrong, the names were 
 to be struck off. 
 
 Bosanquet, Q.C., for. the appellant. The question in 
 this case is, whether a freehold rent-charge for life of 
 an annual value above forty 40s., but under £o, and not 
 brought within any of the exceptions specified in sec. 18 
 of the Reform Act, is capable of conferring the county 
 franchise. That such a rent-charge would under 
 8 Hen. 6, c. 7, have conferred the county franchise is 
 not denied. Although the 8 Hen. 6, c. 7, was passed 
 to restrict the franchise, its terms, extending, as 
 they do, to all persons who "have free land or tenement 
 to the value of 40s. by the year at least above all 
 charges," and embracing therefore every kind of free- 
 hold rent-charge, are clearly wide enough to include 
 life rent-charges. Eesidence in the county where the 
 qualification is situated, which the 8 Hen. 6, c. 7, 
 required, is now no longer necessary, and that statute 
 contained no requirement on the subject of occupation. 
 The statute which governs the present case, however, is 
 the Reform Act (2 Will. 4, c. 45). Sec. 18 of that Act 
 has, with certain exceptions not material here, restricted 
 the franchise in respect of life interests to qualifications 
 of the annual value of £10 (reduced now to £5) unless 
 the voter be in "actual and bond fide occupation." In 
 Rogers on Elections (13th ed.), p. 6, it is said that the 
 section " was probably directed to a double purpose ; 
 1st, the reservation of the rights of a large class of the 
 then existing voters of the humbler sort, , who substan 
 
330 MICHAELMAS SITTINGS. ' 
 
 1883. tially occupied ; 2ndly, the prevention of the fraudulent 
 Deuitt manufacture of votes at this low standard of value," viz. 
 Overseers of 408., " by means of life rent-charges and other small incor- 
 CHDRCH. poreal hereditaments, such as free warren, right of fishery, 
 common, &c,, which are incapable of occupation." It 
 would be strange if the grant of a rent-charge for life 
 secured on a cottage gave a vote to the grantee, 
 although the rent-charge was of less than £5 annual 
 value, while the reservation of a like amount of rent by 
 a landlord, having only a life interest, would admittedly 
 give him no vote. The question involved is not 
 wholly without authority, though it has never been 
 made the subject of express decision. In Beam v. 
 Watson (a), which was decided upon the question how 
 a. rent-charge for life issuing out of land in two counties 
 should be apportioned for the purpose of the franchise, 
 the facts established that, according to the principle of 
 apportionment which the Court adopted, there was a 
 sum less than £5, viz., £4. 5s. Qd., issuing out of the land 
 situated in the county where the vote was claimed. 
 The Court, reversing the decision of the revising bar- 
 rister, disallowed the vote. Incidentally, therefore, they 
 decided that a rent-charge for life of less annual value 
 than £5 is of insuflBcient value to confer the franchise. 
 That the argument in that case did not turn upon the 
 present point, but upon the question of apportionment, 
 is admitted, but the present point was undoubtedly 
 involved in the decision of the case. Warhurton v. 
 Denton (b) is also in point to this extent, that it shows 
 that a chattel rent-charge is not a tenement capable of 
 occupation within the Acts relating to the franchise. 
 And if it be not, the same must also, it is submitted, be 
 
 (a) Ante, p. 268. I. R. 6 C. P. 267. 
 
 (6) 1 ffopw. & Cdt. 432 ; S. C. 
 
XLVII VICTORIA. 831 
 
 true of a freehold rent-charge. Apart from these two 1883. 
 cases, there is no authority in point. These two cases, Druitt 
 however, support the appellant's contention, and as the ovekseebs of 
 contrary view would evidently defeat the intention of oh^r'oh! 
 the Legislature, the decision of the Revising Barrister 
 ought, it is submitted, to be reversed. 
 
 B. Coleridge for the respondent. The claimants are 
 admittedly qualified under 8 Hen. 6, c. 7, aad there is 
 nothing in the Reform Act (2 Will. 4, c. 45) to cut 
 down their title. No doubt in order to satisfy sec. 26 of 
 the latter Act it is necessary that, during the qualifying 
 six months, the claimants should have had actual 
 possession or been in receipt of the rents and profits. 
 But here that requirement of the statute has been 
 satisfied. Sec. 18 has, it is submitted, no application. 
 Its language contemplates that the subject matter of 
 the franchise should be a thing which is capable of 
 actual occupation. A rent-charge being incorporeal, 
 cannot be actually occupied. It admits no doubt of 
 actual possession — Murray v. Thorniley (a) ; and the 
 possession required by section 26 must, as that case 
 shows, be possession in fact, and not merely legal 
 possession. 
 
 [Mathew, J. Possession under the Statute of Uses 
 has been held to be a sufficient possession.] 
 
 [Lord Coleridge, C.J. Under the Reform Act, if 
 the annual value were under £10, sec, 18 required 
 occupation, otherwise it did not. But the requirement 
 of possession under sec. 26 is irrespective of value.] 
 
 (a) 1 Lutw. 496; S. 0. 2 C. B. 217. 
 
332 MICHAELMAS SITTrXGS. 
 
 1883. The language of sec. 5 of 30 & 31 Vict. c. 102 is 
 
 Dbuitt important, since the word " tenement " occurs twice 
 OvEESEEEs OF there. Warhurton v. Denton (a) has decided that in 
 CHURCH. ^^^ second passage where the word occurs the " tene- 
 ment " must be capable of actual occupation. It would 
 be singular if in the earlier branch of the same section 
 " tenement " were to receive a more extended construc- 
 tion. In Warburton v. Benton (a) it was pointed out 
 that sec. o of 30 & 31 Vict. c. 102, was a repetition of 
 ss. 19 and 20 of 2 Will. 4, c. 45, except as to value, so that 
 the word " tenement " must receive the same construc- 
 tion in both enactments. To make the whole legisla- 
 tion consistent, the word where it occurs in sec. 18 of 
 the earlier A.ct ought also, it is submitted, to be similarly 
 construed. 
 
 [He also referred to Dodds v. Thompson (6).] 
 
 Bosanquet, Q.C., was not heard in reply. 
 
 Lord Coleridge, C.J. In this case we have for the 
 first time to put an interpretation on sec. 18 of the Reform 
 Act, 1832 — amended, indeed, by sec. 5 of "The Represen- 
 _ tation of the People Act, 1867," but only so far as relates 
 to the value of the qualification. The question we have 
 to decide is whether a freehold rent-charge, granted for 
 the life of the grantor, must, in order that it may 
 confer a qualification on the grantee, be of the annual 
 value of £5 at least. I am of opinion that it must. 
 
 The statute of Hen. 6 limited the franchise to those 
 who shall " have free tenement " of the clear annual 
 value of 40s. — words, which have long been held to 
 include the possession of a freehold rent-charge issuing 
 
 (a) 1 ffopw. <fc Colt. 432; S. C. (6) Mopw. & Ph. 285: & C. L. 
 
 L. R. 6 0. P. 267. P. 1 a P. 133. 
 
XLVII VICTORIA. 333 
 
 out of land. Such rent-charge therefore, if of the clear 1883. 
 annual value of 4<0s., was held sufficient to confer the Dbuitt 
 county franchise. So far as regards rent-charges in fee Ovbrsebes of 
 that statute still remains unaltered, and the old 40s. ohdrch. 
 franchise untouched. But in regard to freeholds for 
 lives sec. 18 of the Reform Act, 1832 (2 Will. 4, c. 45), 
 enacts that for the future no persons shall be entitled 
 to the county franchise " in respect of any freehold 
 lands or tenements " (tenements including rent-charges) 
 " whereof such person may be seised for his own life, or 
 for the life of another, or for any lives whatsoever, 
 except such person shall be in the actual and bond fide 
 occupation of such lands or tenements, or except the 
 same shall have come to such person by marriage, mar- 
 riage settlement, devise, or promotion to any benefice 
 or to any office, or except the same shall be of the clear 
 yearly value of not less than '' £10 — an amount since 
 reduced from £10 to £5. The grant therefore for life 
 or lives even of land — the words being " lands or tene- 
 ments " — is not under that section, as amended, to confer 
 the franchise, unless there be a clear yearly value of £.5, 
 or actual occupation. The object which that section had 
 in view was evidently to limit the creation of fagot 
 votes, it being one thing to create a rent-charge of 40s. 
 annual value, and another to create one of £10. But 
 whatever the intention of the Legislature, its language 
 appears to me plain and free from doubt. 
 
 The question is not without authority. In Beam v. 
 
 Watson (a), although the actual point was_ not before 
 
 the Court, it was in fact determined, since there, upon 
 
 the apportionment of a rent-charge (which was for life, 
 
 and not in fee) between lands in two eounties, it was 
 
 (a) Ante, p. 268. 
 vol. I. B B 
 
8§4i MICHAELMAS BlWlNGS. 
 
 ISSS. held, that the portion within the County where the Vote 
 
 Dexiitt Waa claimed, being of an annual Value below £5, was 
 V. . . 
 
 OvEHSKEHs 61' iftsufiScient to confei" the francliise. The cases cited on 
 
 cHL'Rcft. *he other side, Murray v. Thornihy (a) and Dodds v. 
 Thompson (b), were cases of rent-charges in fee, rightly 
 decided, but not in point, In Murray v. Thorniley (a) 
 the decision turned on sec. 26 of the Reform Act, 
 where the word used is not " occupation " but " posses- 
 sion." It appears to me that sees. 18 and 26 may 
 Well be fead together, thus^In all cases of freehold 
 lands and tenements (including rent-charges) there mufet 
 be actual possession ; in all cases of freehold lands and 
 tenements for life below £5 annual value there must be 
 occupationj and if the tenement is not capable of occu- 
 pation (and a rent-charge is not) there can be no vote 
 in respect of it. 
 
 Upon these grounds I am of opinion that the decision 
 of the Eevising Barrister should be reversed. 
 
 Hawkins and Mathew, JJ., concurred. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, Lovell, Son, & Pitfield, 
 for BYUitt <& Druitt, Christchurch. 
 For Respondent, Robins & Son, South- 
 ampton. 
 
 (a) 1 Lidw. 496 ; S.C.2 C. B. (6) Hopw. <t Ph. 285 ; S. C. L. 
 
 217. 7?. 1 a P. 133. 
 
xr.vii VICTORIA. 335 
 
 LowcocK, Appellant ; Overseers of Brough- 
 TON, Respondents. 
 
 A T the Court held for the revision of the list of voters 1883. 
 for the township of Broughton, in the South Eastern '"'• ' 
 
 Division of the countv of Lancaster, objection was taken ^''*"* °* '■™*- 
 
 •' ' "" charge by A. 
 
 to the name of Arthur Lowcock (the appellant) being *» ^■' ^- ""'^ 
 
 ^ ^^ ' 6 D., and their 
 
 retained on the list of voters for the said South Eastern heirs, to the 
 
 use of the said 
 
 Division in respect of property situate within the said A., B., c. and 
 
 . D., their heirs 
 
 township. and assigns 
 
 [The case set out the particulars of the appellant's equal shares 
 claim, which was made " in respect of one equal fourth co^^*"*^ "^ 
 share of freehold rent-charges " issuing out of property ^f' ^^- *" 
 specified in the claim situate in the said township.! * grantee to 
 
 ^ -^ -' uses) took 
 
 The said rent-charges fthree in number) were created "nder the 
 
 ° ■ ' Statute of 
 
 by one John Lowcock, two for £11 6s. Oc?. and £7 li. \d. Uses, B., c. 
 
 . and D. took in 
 
 m I860, and one for £22 m 18/5. The conveyances the same way, 
 
 were similar. That of 1875 conveyed the land to the quently 
 
 purchaser and his heirs, to the use that the said John ^^TOrdance 
 
 Lowcock his heirs arid assigns should for ever thereafter jo'trine of 
 
 out of the said plot of land thereby assured, &c., have, ^^^^J\ „;• 
 
 receive, and take a clear yearly rent of £22 by equal ^^^ actual pos- 
 session" of the 
 half-yearly payments on every 25 th March and 29th rent-charge, 
 
 within the 
 (a) Hopw. & Ph. 189 ; S. G. 18 O. B. N. S. 90. 2Wm!i °1 45 
 
 H. 26, immedi- 
 ately upon the execution of, the deed, although they had not in fact receiyed any por- 
 Hoh Af the rents. 
 
 B b2 
 
336 MICHAELMAS S1TTIN(3S. 
 
 1883. September, &c.; to further uses, limiting to the said 
 
 " LowcooK John Lowcoeh his heirs and assigns powers of distress 
 
 Overseers of ^^^ °f entry and perception of rents and profits fpr 
 
 Broughton. securing the yearly rent ; and, subject and charged as 
 
 therein mentioned, to the use of the purchaser his heirs 
 
 and assigns for ever. 
 
 By indenture duly executed by all parties upon and 
 dated the 1] th day of January, 1883, and made between 
 the said John Lowcoeh of the first part, Richard Low- 
 cock, the said Arthur Lowcoeh (the appellant), and 
 Frederick William Lowcoeh (sons of the said John 
 Lowcoeh) of the second part, and the said John Lowcoeh, 
 Richard Lowcoeh, Arthur Lowcoeh, and Frederich 
 William, Loiccoeh of the third part, the said John 
 Lowcoeh in consideration of the natural love and affec- 
 tion which he had for his said sons granted and con- 
 veyed unto the said Richard Lowcoeh, Arthur Lowcoeh, 
 and Frederich William Lowcoeh and their heirs all 
 , those the said three several yearly rents of £11 6s. Od., 
 £7 7s. Id., and £22, to hold the same unto the said 
 Richard Lowcoeh, Arthur Lowcoeh, and Frederick 
 William, Lowcoeh and their heirs, to the use of the 
 said John Loweock, Richard Lowcoeh, Arthur Lowcoek, 
 and Frederick William Loiveoeh their heirs and assigns 
 for ever in equal one-fourth shares as tenants in 
 common. 
 
 The half-year's rents which became due on 25th 
 March, 1883, being the first which became due after 
 the execution of the said indenture of the 11th of 
 Janury, 1883, were paid in the month of April to the 
 said John Loivcock, but no portion of the same has 
 been paid either to the appellant, or to Frederich 
 William Lowcoeh, or Richard Loxucoch. 
 It was objected that the appellant had never been in 
 
XLVII VICTOKIA. 337 
 
 actual possession, or in receipt of his share of the said 1883. 
 rent-charges. Lowcock 
 
 The appellant contended that the Statute of Uses qvekseeks of 
 (27 Hen. 8, c. 10) operated to give to him the actual k°"<*h'^°'"- 
 possession of the rent-charges on the execution of the 
 deed of the 11th of January, 1883. 
 
 The Revising Barrister was of opinion that the deed 
 operated as a reservation by the grantor of one-fourth 
 of the rent-charges for himself,and as agift of the remain- 
 ing three-fourths to his three sons in equal one-fourth 
 shares as tenants in common, and that, as there was no 
 third party intervening between them and the grantor, 
 the appellant took the said one-fourth share by force of 
 the common law, and the Statute of Uses did not apply, 
 and he therefore disallowed the appellant's claim. 
 
 The appeals of Frederick WUliam, Lowcock, and 
 Ilicha7'd Lowcock, whose claims were disallowed upon 
 the same point of law, were consolidated with that of 
 the appellant. 
 
 Ambrose, Q.G., for the appellant. The decision of 
 the Revising Barrister was wrong. The deed of the 
 11th of January, 1883, operated to confer upon the 
 claimants "actual possession" within sec. 26 of the 
 Reform Act, their interests as tenants in common vest- 
 ing in them not at common law, but under the Statute 
 of Uses — Heelis v. Blain (a), Webster v. Overseers of 
 Ashton-under-Lyne {Orme's and Hadfield's cases) (6). 
 In Hadfield's case the Couii of Common Pleas declined 
 to overrule Heelis v. Blain (a), and this Court will 
 not, it is submitted, permit the authority of Heelis v. 
 Blain (a) to be now questioned after the length of 
 
 (o) Hopw. <£• P/i. 189; S. C. 18 (i) 2 ffopw. & Colt. 60, 89: 5. a 
 
 t . B. N. S. 90. L. B. 8 C. P. 281, 306. 
 
•538 MICHAELMAS SITTINGS. 
 
 1883. time during which it hais been acted upon. It is true 
 
 LowcocK that in Orme's case Brett, J., suggested that the 
 
 OvERSEEEs OF Statute of Uses did not apply, unless there were some 
 
 KouGHTON. pg].gQjj iiame(j jji y^e declaration of the use who was not 
 
 named in the grant; but here the claimants are not 
 affected by that dictum, inasmuch as in this deed there 
 is a person, viz., the grantor, who is a person named in 
 the declaration of the use, but not named in the grant. 
 In Burton on Real Property, 7th ed., p. 45, after citing 
 the rule laid down by Lord Bacon that, "where the 
 party seised to the use and the cestui que use is one 
 person, he never taketh by the statute, except there be 
 a direct impossibility or impertinency for the use to 
 take effect by the common law," it is said : " But I con- 
 ceive that, notwithstanding some assertions of the same 
 author relative to particular cases, it may safely be laid 
 down as a further general rule, that, wherever any use, 
 however partial, is given to another person, immediately 
 or in remainder, and the manifest intention of the 
 parties at the same time requires that all the uses 
 declared should be made to take effect as estates by one 
 and the same act, there the impossibility, or at least 
 the impertinency, mentioned by Lord Bacon, exists ; 
 and therefore all the parties are in alike by the 
 statute." In the present case, as it is obvious that the 
 grantor must take his interest under the deed in ques- 
 tion by the operation of the statute, it is submitted, on 
 the principle above stated, that the others included 
 with him in the declaration of the use must equally 
 do so. 
 
 He referred also to Williams on Real Property, lUh 
 ed., pp. 198, 199. 
 
 No one appeared on behalf of the respondent. 
 
xi^vil VIQTQPIA. 339 
 
 LoKD Coleridge, G,J. After hearing Mr, 4m6rosg'fi 1883- 
 argument I have com© to the cooolusion that it is Jjpv?pq<3^ 
 correct, and home out by the authorities. The question Ovebsesk^ qv 
 arises under a deed by which the grantor granted to his ' 
 three sons three yearly rent^eharges, to hold to the use 
 of himself and his three sons in equal one-fourth shares 
 as tenants in common ; and the question we have to de- 
 termine is, whether this grant operated under the Statute 
 of Uses, or at compion law. But for the introduction of 
 the grantor as a cestui que use there can be no doubt 
 that the grant would have operated at common law, 
 and not under the Statute of Uses. The Statute of Uses 
 speaks of a person or persons seised to the use of any 
 Qiker person or persons, implying that the party seised 
 to tke use is a. different person from the cestui que use, 
 and on this point we have the high authority of Lord 
 Bacon (quoted in Burton on Real Property, 7th ed., 
 p, 45), '■ that, where the party seised to the use and the 
 cestui que. use is one person, he never taketh by the 
 statute, except there be a direct impossibility or ixnper^ 
 tinenoy for the use to take effect by the common law." 
 It foJluw? that, if this had been a grant to the three 
 gona to the use of the three sons, the Statute of Uses 
 would not have applied, and the appellant would not 
 have been entitled to the franchise. On the other hand 
 it is equally clear, on the authority of Heelis v. Blain (a), 
 which has been recognised and upheld in two subsequent 
 eases in the Common Pleas, that if the grant did ope- 
 rate under the Statute of Uses, it gave to the cestui que 
 use such an " actual possession " as satisfies the words 
 of sec. 26 of the Reform Act. The decision in Heelis v. 
 Blain (a) is binding upon us, not indeed in the sense 
 
 (a) ffopw. S Ph. 189; S. C. 18 0. B. N. S. 90. 
 
340 MICHAELMAS SITTINGS. 
 
 1883. that we are constitutionally unable to decline to follow 
 
 LowoocK a previous decision, but that such a course would be 
 
 OvEKSEERs OF attended with extreme inconvenience, and is one which 
 
 Beoughton. ^g should certainly decline to take, unless we were 
 
 satisfied that the decision was clearly wrong. 
 
 What then is the true effect of this conveyance? 
 It occurred to me during the argument that possibly 
 the conveyance might operate partly at common law 
 and partly under the Statute of Uses ; but upon autho- 
 rity it seems clear that this is not so. Not only is 
 there the high authority of Mr. Williams (a), but the 
 same point is dealt with by a writer of even higher 
 authority {Burton on Real PropeHy, 7th ed., p. 46), 
 who lays it down as a clear conveyancing proposition, 
 supported by the practice of conveyancers, that, if A. be 
 enfeoffed to the use of himself and B., although by a 
 literal construction of the statute B. would take his 
 share of the estate by Act of Parliament, leaving A. to 
 take his immediately by the feoffment, yet " it has been 
 decided that they are both in by the statute." Here, 
 therefore, as the father would take his portion of the 
 tenancy in common under the statute, it seems to be 
 established by authority that the other grantees \*rould 
 do so also. If that be the true construction of the 
 deed, it follows that Heelis v. Blain (b) is in point, 
 and the decision of the Revising Barrister must be 
 reversed. ' 
 
 In deciding as I do, however, I may say that I do 
 not at all wonder at the Revising Barrister having 
 arrived at the conclusion to which he came. 
 
 {a) William on Seal Pro^wty, (6) Sopw. d: Ph. 189: S. C. 18 
 
 14th ed., pp. 198, 199. C. B. N. S. 90. 
 
XLVII VICTORIA. 
 
 Hawkins and Mathew, JJ., concurred. 
 
 Decision reversed. 
 
 Solicitors — For Appellants, Johnson & Weatherall, 
 for Wigglesworth & Rogerson, 
 Manchester. 
 
 341 
 
 1883. 
 
 LOWCOCK 
 V. 
 
 ovebseebs of 
 Brouohton. 
 
MICHAELMAS SITTINGS. 
 
 Freeman, Appellant ; Newman, Respondent. 
 
 1883. A '^ ^ Court held before the Eevising Barrister appointed 
 " to revise the list of voters for the Southern Division of 
 
 di>;^otk,n to a *^® ^^^^ Riding of the county of York, the appellant, 
 county claim- q^ behalf of William Fitton, objected to the claim of 
 
 ant given to "^ 
 
 overseers Charles James Ellis to have his name inserted in the 
 
 under 6 & 7 _ 
 
 Vict. V. 18, list of voters relating to the township of Alverthorpe- 
 
 s, 7, was dated • , rm • i 
 
 the 18th of vnth-Thornes m the said division, 
 thousand The said W. Fitton on the 18th of August, 1883, gave 
 
 ^fd eighty/^ notice of objection to the overseers of the poor of the 
 '"onrthousand ^^^^ township, in the ordinary form, but concluding as 
 
 eight hundred foUows: — ■ 
 and eighty- 
 
 the^obieetor " ^**®'' '**'^ eighteenth day of August, one thousand eight hundred 
 
 having given and eighty 
 
 apropernotice "(Signed) Wm. Fitton, 
 
 of objection to ,. j, ^, , „ „ , , 
 
 the claimant »/ Church Street, Moldgreen, 
 
 himself, the " Hvdder^ld." 
 
 latter was not 
 
 encedTormis- '^^^ claimant objected that the said notice vras in- 
 ne^ rt?etfss sufficient and void in law, inasmuch as the year of our 
 that the de- Lord was incorrectly stated in the date thereto. 
 
 lective date 
 
 was fatal to Sufficient notice of objection was given by the said 
 
 the validity of . . 
 
 the notice ; W. Fitton to the claimant, and the said overseers duly 
 
 also that the ii-ij t j^ r i • • • ti- 
 
 overseers had published a list 01 Objections including the name of the 
 
 no power to i . . 
 
 waive such Claimant. 
 
 defect, and 
 
 consequently had not done so by publishing the claimant's name in their list of persons 
 
 objected to. 
 
"XL VII VIGX£»BIA. St3 
 
 The Revising Barrister found as a fact that the. 1883. 
 
 claimant was not inconvenienced or misled by the Fisbbm^n 
 
 , . . . '^' 
 
 alleged defect in the said notice of objection given to itEwiiAN. 
 
 the overseers. 
 
 Other names, objected to under similar circumstances, 
 appeared in a schedule. 
 
 For the said W. Fittan it was contended that the 
 notice to overseers was sufficient and valid in law, as 
 the date thereof did not show that such notice was not 
 given before the 20th day of August, 1883, and further 
 that any defect in the said notice related to the said over- 
 seers only, and was waived by the overseers publishing 
 their list of objections including th^ name of the claimant. 
 
 The Revising Barrister held that the said notice of 
 objection was insufficient and void in law. 
 
 If the Court should be of opinion that the decision was 
 wrong the names of the claimant and the other persons 
 in the schedule were to be expung€d from the list of 
 voters, it being admitted that their names must be ex- 
 punged if the notices were valid. 
 
 Worthy, for the appellant. The question in this cage 
 is, whether 9, notice of objection to overseers, VE^Ud in 
 all other respects, is invalid, because the date is imper-- 
 feqtly stated. The imperfection relied on consists in 
 this, that, ailtbough the day and the month are correctly 
 stated in the notice, a blank h^iS been left where, xo, 
 strictness, the year should have been filled in, The 
 Revising Barrister has found as a fact that the claimant 
 was not Enisled, and under these circumstances it is. sub- 
 mitted that he ghould h£i,Ye held the notice valid, la 
 support of the objection to the notice, Beenlen^ v. 
 Hochin (a) will no doubt be relied on, but for the ap-. 
 Ca) ilutw. 526 ; S: C. i C, B. 19. 
 
344 MICHAELMAS SITTINGS. 
 
 1883. pellant it is contended that that case is distinguishable 
 Freeman from the present. In the present case the notice to the 
 Newman, claimant was admittedly a valid notice, whereas in 
 Beenlen v. Hoclcin {a) objection was taken to both 
 notices. The decision in Beenlen v. Hockin (a) may 
 therefore be distinguished upon the ground that, although 
 in a notice to the person objected to an error in the 
 date is fatal, it is not necessarily so in a notice to over- 
 seers. In deciding that case the Court were evidently 
 influenced by the consideration that, a notice imperfectly 
 dated having been served on the person objected to, a 
 possibility existed of his having been misled by it, and 
 Maule, J., in giving judgment, expressly pointed out 
 how that might occur. Here, the only mistake being in 
 the notice to overseers, it must surely be competent for 
 them to waive it. To do so, would merely be to waive 
 the omission of a particular, which the Legislature has 
 required for their convenience. Assuming the existence 
 of a power of waiver in the overseers, they must clearly 
 be held to have exercised it by including the claimant's 
 name in the published list of persons objected to. That 
 the overseers have a power of waiver in the analogous 
 case of a claim is well settled — Bavies v. Hopkins (b), 
 Leonard v. Alloways (c). Their publication of a 
 claimant's name upon the list of claimants precludes 
 the Revising Barrister from inquiring whether the for- 
 malities of the statute have been observed. 
 [He referred also to In re Sale (d).] 
 
 Mattinson, for the respondent. The Revising Barrister 
 was right in holding that the notice of objection was 
 
 (o) 1 Lutw. 526; S. C. i C. B. N. S. 376. 
 19-- (c) 2 Ifopw. <t- Colt. 411. 
 
 (6) K. & G. 118; S. C. 3 C. B. [d) Ante, p. 152. 
 
XLVII VICTORIA. S45 
 
 invalid, and, as the question arose in reference to the 1883. 
 county, and not the borough franchise, he had no power Fbeeman 
 to amend the notice. The case of Beenlen v. Hockin (a) Newman. 
 is an express authority for the Revising Barrister's deci- 
 sion. It is true no doubt, as has been pointed out on 
 the other side, that in Beenlen v. Hockin (a) both 
 notices were open to the same objection, which is not 
 the case here ; but the grounds on which the judgment 
 of the Court there proceeded, viz., that the statutory 
 forms had not been complied with, apply with equal force 
 to both notices. 
 
 [Hawkins, J. Is not the object of requiring notice 
 to the overseers to enable them to publish a list of 
 the persons objected to ? Is it possible to suggest 
 any other object ? ] 
 
 The respondent relies on the language of the Registra- 
 tion Act (6 & 7 Vict. e. 18), sec. 40 of which makes proof 
 of both notices a condition precedent to the person 
 objected to being called upon to substantiate his vote. 
 The material words of sec. 40 are as follows : — " where 
 .... such other person so objecting shall appear by 
 himself, or by some one on his behalf, in support of such 
 objection, and shall prove that he gave the notice or 
 notices respectively required by this Act to be given by 
 him, every such barrister shall then require it to be 
 proved that the person so objected to was entitled on 
 the last day of July then next preceding, &c." The 
 notices are required by sec. 7. Looking to the language 
 of that statute, it is submitted that overseers can have 
 no power to waive an imperfection in the notices. If 
 their power to waive exist at all, it must exist equally, 
 
 (a) 1 Lutw. 526 -,8.0.4: 0. S. 19. 
 
346 MICHAELMAS SITTINGS. 
 
 1883. whatever the nature of th6 imperfection may be. But 
 FKEfeMAis upon the words of the statute the person objected to 
 NEwiia*. has clearly a right to insist that, as to each notice which 
 the statute requires, proof shall be forthcoming of a valid 
 notice. The cases cited on the other side — Davies V. 
 Hopkins (a) and Leonard v. Alloways (6)^-referring, as 
 they do, to notices of claim, not to notices of objection, 
 &te not in point. As regards notices of claim, the Legis- 
 lature has, as those decisions show, dispensed with the 
 necessity of proving the notice, wherever the overseers 
 have accepted it by entering the name upon their lists ; 
 but, as regards notices of objection, the Legislature has 
 expressly required that they shall be proved. Strictly, 
 it cannot be said that the overseers have a power of 
 waiver even in the case of notices of claim, though this 
 result is practically brought about by the wording of 
 the Registration Acts. Where the overseers have placed 
 a county claimant upon their lists, the clause which 
 regulates the proceedings of the Revising Barrister (sec. 
 40 of 6 & 7 Vict. c. 18) does not empower him to insist 
 that the notice of claim shall be proved. The authority 
 of Beenlen v. Hochin (c) is recognised by Erie, C.J., in 
 Jones V. Jones (d). Erie, C. J., there points out that in 
 Beenlen v. Hochin (c) it was held essential that the 
 notice should have a date, and that the date should be 
 one in which the year was specified. In Beenlen v. 
 Hochin (c) there was no such date, while in Jones v. 
 Jones (d) there was. In the former case, therefore, the 
 notice was held bad, while in the latter case it was held 
 valid. 
 
 (a) K. & a. 118 J S. C. 3 0. B. 19. 
 i\r. S. 376. id) Hopm. & Pli. 320 ; S. O. £. 
 
 (6) ? Hopw. & Colt. 411. R. 1 a P. 140. 
 (c) 1 iMtw. 526 ; S.C.i 0. B. 
 
XLVil VICTORIA. 3417 
 
 Wm'tley, in feply. It is admitted that the notifies of 1883. 
 
 objection toiist comply Substantially with the require- Fbeeman 
 ments of 6 & 7 V%ct. c. 18, s. 7,ati 1 that unief sec. 40 the Newman. 
 oUjectot was boiind to prove that he gave such notices. 
 Here, howevet, it is submitted that he has done so. JotUs 
 V. JoTwS (a), on being referred to, will be found to be in 
 the appellant's favour. Bylei, J., there intimates that 
 an error in the date, such as thefe occurred, is a " mis- 
 nomer or inaccurate description " of a thing denomi- 
 nated in the notice within the meaning of the lOlst 
 section, and consequently not such an error aS to vitiate 
 the notice^ 
 
 Lord Comridge, CJ. I cannot help regretting the 
 decision which I am about to pronounce, becaiise the 
 point raised is highly technical, and entirely beside the 
 meritSj if indeed the term merits can properly be 
 applied to this class of cases. The case, however, is 
 plainly one to which the beneficial powers of ainend- 
 ment have not been extended^ and although there is the 
 high authority of Mr. Justice Byle$, in J&ms t. 
 Jones (a), for holding that the misdate bf a notice is a 
 " misnomer or inaccurate description " within sec. lOl 
 of the iiegistration Act (6 & 7 Vict. c. 18), I am unable to 
 concur with the view which he there expressed, because 
 I think it leaves out of consideration these words of the 
 statute " provided that such .... thing shall fee 
 so deBftiaiiiated in such . . ; . notice as to be com- 
 monly understood." The other judges who took part in 
 that decision all carefilUy based their judgments> not on 
 any question of misnomer, but on another ground, 
 which was I think perfectly correct, viz., that the 
 
 (a) Hbpw^ & Ph. 320 ; S. 0. L. R. I C. P. 140. 
 
34S 
 
 MICHAELMAS SITTINGS. 
 
 1883. statutory requirements had been substantially complied 
 I'EEEMAN with. Putting aside that case, therefore, what we have 
 NswMAN. here to determine is, whether a notice of objection, 
 which on its face is admittedly imperfect, and might 
 possibly be misleading, is, or is not, a valid notice. 
 Now, Parliament in mandatory terms has enacted that 
 two notices of objection shall be given — one to the 
 party objected to, the other to the overseers — and has 
 specified with particularity what each of these notices 
 is to contain. The party objected to is entitled, before 
 the question of his right to vote can be considered, to 
 have it proved that the objector has complied with 
 these conditions of the statute. Here the objector has 
 complied with the conditions as to one notice, but as to 
 the other he has not, the notiee being misdated. That 
 such an error is fatal to the validity of the notice was 
 long since decided in Beenlen v. Hockin (a), where all 
 the judges concurred in holding that, although the 
 notices were proved to have been delivered in due time, 
 the Revising Barristers were wrong in holding them 
 valid, and proceeding to hear the case. The judgments 
 in Beenlen v. UocJcin (a) were pronounced by judges of 
 the highest authority, and no attempt,, so far as I am 
 aware, has ever been made to reverse or qualify their 
 decision. I confess that I regret to have to yield here 
 to a technical objection, the Revising Barrister having 
 found that the claimant was not misled, but I cannot 
 agi-ee that the overseers had power to waive the 
 invalidity in the notice. If the person objected to 
 were to appear and not take the objection, that no 
 .doubt would be another matter, but the overseers can 
 have no power to waive the invalidity. 
 
 {a) 1 Liitw. 526 ; S. C. i C. B. 19. 
 
XLVII VICTORIA. 349 
 
 Upon the words of the statute, as well as upon the 1883. 
 
 authority of Beenlen v. HocJcin (a), I am of opinion Fkeeman 
 
 that the decision of the Revising Barrister should be Newman. 
 affirmed. 
 
 Hawkins and Mathew, JJ., concurred. 
 
 Solicitors — For Appellant, Van Sandau, Cwmining 
 
 & Armitage, 
 for Brook, Freevian & Batley, . 
 Huddersfield. 
 For Respondent, Singleton <& Tattershall, 
 for Neivman (t Sons, Barnsley. 
 
 {a) 1 jMtw. 526 ; S. 0. i 0. B. 19. 
 
;■-•*. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 QUEEN'S BENCH DIVISION 
 
 OF 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDER STATS. 6 & 7 VICT. c. 18, 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DURING 
 
 MICHAELMAS SITTINGS, 1884, 
 
 IN THE 
 
 FORTY -EIGHTH TEAR OF QUEEN VICTORIA. 
 
 Ford, Appellant; Hoar, Respondent. 
 
 AT a Court held by the Revising Barrister appointed 1884. 
 to revise the list of voters for the city and county of the . 
 
 city of Exeter, on the 15th September, 1884, the res- HfilatfJn ™' 
 pondent's name appeared' in the list of voters for the borou VSsts* 
 parish of Saint Thomas the Apostle as the occupier of .""^^^''^"S- 
 
 ' ^ '■ ' nouses in suc- 
 
 dwelling-houses in succession, and the entry and de- session," "44, 
 
 Oxford Street, 
 
 scription on the said list were as follows : — and 34, Pros- 
 
 pect Place." 
 The voter, having occupied 31, Prospect PUnce, between his ooeupation of the other i 
 bouses, had, in fact, occupied 3 houses in succession .during the qualifying year. 
 The overseer knew this, but by mistake omitted to insert 31, Prospect Place, along 
 with the other 2 houses. Held, per Stephen, J. and Cave, J. (Lord Coleridge, C.J. 
 (Ussentieate) that the mistake was amendable under 41 & 42 Vict. c. 26, s. 28, sub-s. 1. 
 The Revising Barrister had amended by striking out the numbers of the houses. 
 Held, that this was wrong, but that it was in the power of the Court to make the 
 proper amendment. 
 
352 
 
 MICHAELMAS SITTINGS. 
 
 1884. 
 
 PORD 
 V, 
 
 HOAB. 
 
 Name of Voter. Place of Abode. 
 
 Hoar, William, 
 
 34, Protpect 
 
 Place, Cowick 
 
 Street. 
 
 Nature of Quali 
 fication. 
 
 Dwelling-houses 
 in succession. 
 
 Name and Situation 
 
 of Qualifying 
 
 Property. 
 
 44, Oxford Street 
 
 and 
 
 34, Prospect Place, 
 
 Cowick Street. 
 
 The appellant dlily objected to the name of the 
 respondent being retained on the said list, on the 
 ground {inter alia) that the respondent had not been 
 in occupation of the premises as described therein for 
 the period and at the time required by law to give him 
 a vote. 
 
 The following facts were proved : — 
 
 The respondent had occupied during the whole 
 qualifying period 3 houses in immediate succession, 
 viz., Nos. 44, Oxford Street, and 31 and 34, Prospect 
 Place, Cowick Street, and his occupation of those 3 
 houses and not of the 2 houses only which are specified 
 on the list gave him a complete qualification of the 
 nature specified in the 3rd column of the list. The 
 overseer well knew that the respondent had occupied 
 the house, 31, Prospect Place, Cowick Street, between 
 his occupation of 44, Oxfoi-d Street, and his present 
 house, 34, Prospect Place, and that there had been 
 immediate successive occupation, but he accidentally 
 and by mistake omitted to specify the intermediate 
 house, 31, Prospect Place, in the description of the 
 qualifying property, and the part only of the qualifying 
 property as it appeared on the list was insufiicient to 
 give the vote. 
 
 Upon proof of the above facts the Revising Barrister 
 was asked, on behalf of the i-espondent, to amend the 
 4th column of the list by striking out the figures 44 and 
 
XLVIII VICTORIA. 353 
 
 1 fiA J. 
 
 34, which stood before Oxford Street and Prospect '___ 
 
 Place respectively, and to retain the name of the '^o^t^ 
 respondent in respect of his qualification, which Hoab. 
 consisted of his occupation of the 3 houses as stated 
 above. 
 
 It was contended by the appellant that the Revising 
 Barrister had no power to make that amendment, as by 
 so doing he would be making the qualification of the 
 voter (the respondent) to consist of an occupation of 
 3 houses in succession instead of 2 houses only, as 
 specified on the list. 
 
 The Revising Barrister decided that he had the 
 power, under the 28th section of the Parliamentary and 
 Municipal Registration Act, 1878, to make the amend- 
 ment as requested, and he struck out the figures 44 
 and 34 in the 4th column of the list, and received proof 
 of the successive occupation by the respondent of the 
 said 3 houses, being of opinion that by so doing he was 
 not altering the nature of the qualification inserted on 
 the list, nor the situation of the qualifying property, 
 but merely correcting an omission accidentally and by 
 mistake made by the overseer in making out the list, 
 and he retained the name of the respondent on the list 
 of voters for the said city. 
 
 If the Court should be of opinion that the Revising 
 Barrister's decision was wrong, the register was to be 
 amended by striking out the name of the respondent 
 from the said list. 
 
 Bompas, Q.C. The main question in this case is, 
 whether a necessary part of the qualification having 
 been omitted in describing the qualification, the Revis- 
 ing Barrister had power to amend by inserting it. It 
 is submitted that he had not. The question turns on 
 
 DD 2 
 
354 MICHAELMAS SITTINGS 
 
 ' 1884 
 
 the construction of 41 & 42 Vict. c. 26, s. 28. That 
 ■^'^^° section, so far as relates to the correction of mistakes 
 Hoar. ju overseers' lists, is identical in terms with 6 & 7 Vict. 
 c. 18, s. 40. In both Acts it is enacted that the Revising 
 Barrister " shall correct any mistake " " proved to him to 
 have been made in any list;" and in both Acts there is 
 the same proviso that " no evidence shall be given of 
 any other qualification than that which is described in 
 the list," and that the Revising Barrister shall not " be 
 at liberty to change the description of the qualification 
 as it appears in the list, except for the purpose of more 
 clearly and accurately defining the same." The only 
 difference of language is that in the later Act the 
 proviso, which is contained in sub-s. 1 3 of sec. 28, com- 
 mences with the words "except as herein provided," 
 while there are no such words in the former Act. 
 These words of exception, however, must, it is submitted, 
 have reference to sub-s. 12, a new clause not contained 
 in the Act of 1843, and not to sub-s. 1, which is simply a 
 re-enactment. Unless a valid distinction can be drawn 
 between the two enactments, Bartlett v. Gihhs (a) is 
 decisive of the case. In Bartlett v. Gibhs (a) the 
 omission in the 4th column was the act of the overseers. 
 Such an omission must clearly, it is submitted, have 
 been a " mistake " on their part, construing " mistake " 
 in the way it has been interpreted by recent authorities. 
 Adams v. Bostock (6), James v. Howarth (c), Pickard 
 V. Baylis (d). The object of publishing lists of voters is 
 that the public should have notice of what they contain, 
 and, if necessary, have an opportunity to object. In 
 
 (a) 1 Lutw. 73 ; S. C. 5 M. ct (c) Ante. p. 87 : -S. 0. L. R. 5 C. 
 
 G. 81. P. D. 225. 
 
 {b) Ante, p. 275 ; S. C. L. R. 8 (d) Ante, p. 98 ; & C. L. R. 6 C. 
 
 Q. B. D. 259. P. D. 235. 
 
XLVIII VICTORIA. 355 
 
 Bartlett v. Gibbs (a), Tmdal, C.J. said: "We think 1884. 
 that the legislature intended that the registration list Ford 
 should afford such information of the nature and sitvM- Hoar. 
 tion of the premises, in respect of the occupation of 
 which each person claimed a right to vote, as would 
 enable the other voters to ascertain, by inquiry, the 
 sufficiency of the occupation and value of each of the 
 premises .... The whole object of the notice 
 would be defeated if the omission of any part of the 
 qualification could be remedied at the court of re- 
 vision." 
 
 [Stephen, J. Suppose that the overseers had written 
 the lists correctly, but that the printer had omitted one 
 of the houses constituting the qualification, and that 
 the overseers had not observed the mistake.] 
 
 In such a case the voter could claim, and, if he omits 
 to do so, he cannot complain that he is injured. It is 
 possible, no doubt, that he might be abroad. That would 
 certainly be his misfortune, but the object of the Act 
 in requiring publication must not be overlooked. The 
 present case, however, is not any more than Bartlett v. 
 Gibbs (a) one of a printer's error, but is the case of an 
 omission by overseers of part of the qualification. 
 Onions v. Bawdier (6) followed Bartlett v. Gibbs (a), 
 and is to the same effect. Porrett v. Lord (c) was a 
 decision under the Act of 1878. There the statement 
 in the overseers' list was " house," " 8, Birley Place," 
 and the true qualification "houses in succession," "8 
 and 9, Birley Place," and the Court held that the 
 
 (a) 1 Lutw. 73; S. O. 5 M. d; 65. 
 G. 81. (c) Ante, p. 46 ; S. C. L. R. 5 C. 
 
 (h) 2 Lutw. 59; S. C. 5 C. B. P. D. 65. 
 
358 MICHAELMAS SITTINGS. 
 
 1884. Revising Barrister was right in expunging the name, and 
 FoBD not amending the list, because the proposed addition in 
 
 v. 
 
 HoAB. the 4th column would not constitute a better identifi- 
 cation of the property, but a change in the described 
 qualification. Equally there, as here, the overseer in- 
 tended to write down what he did, when he made the 
 erroneous entry, but, in doing so, he acted under a 
 mistake as to the facts. It cannot surely matter 
 whether, as here, two houses are inserted in the 4th 
 column, or only one, as in Onions v. Bawdier (a), when 
 in both cases one house is wholly omitted. Both are 
 cases of omission of part of the qualification, not cases 
 of insufficient description. As regards sec. 24, it is not 
 true that according to the appellant's contention that 
 section would be rendered inoperative. It would be 
 applicable to cases within sec. 28, sub-s. 12. Thus, 
 under the last-mentioned sub-s. "shop" might be 
 ■ changed to " house," a lodger's qualification to that of a 
 householder, or, in cities were freeholders vote, " free- 
 hold rent " to " freehold house." A voter, who made 
 the declaration under sec. 24, would in such cases get 
 the list amended under sec. 28, sub-s. 12, without the 
 necessity of attending at the revision court. 
 
 Secondly, the Revising Barrister ought clearly 
 not to have amended as he did by striking out the 
 numbers. 
 
 [Lord CoLEEiDGE, C.J. We may correct his decision 
 as to the mode of amendment.] 
 
 The Revising Barrister says that, if his decision was 
 wrong, the name is to be struck out. 
 
 {a) 2 Lutw. 59 ; S. C. 5 C. B. 65. 
 
XLVIII VICTORIA. 357 
 
 [Lord Coleridge, C.J. He cannot limit the powers 1884. 
 of the Court by so stating the case.] Ford 
 
 V. 
 HOAB. 
 
 The Court will be reversing the decision of the 
 Revising Barrister. 
 
 [Cave. No. His decision was that he ought to 
 amend and retain the voter.] 
 
 J. Rose, for the respondent, was requested by the 
 Court to confine his argument to distinguishing Bartlett 
 V. Gibbs (a). In Bartlett v. Gibbs (a) the nature of the 
 qualification was wrongly stated in the 3rd column, as 
 well as the local situation in the 4th. The question 
 there mainly argued was of what the qualification con- 
 sists where two houses are occupied in succession — of 
 houses in succession, as the Court in that case ultimately 
 decided, or of the house last occupied. That case, there- 
 fore, established the principle that where the nature as 
 well as the local situation of the qualification is wrongly 
 stated there can be no amendment, and Porrett v. 
 Lord (b) afi&rms the same principle. In the present 
 case the nature of the qualification in the 3rd column 
 is stated correctly. Apart, however, from that distinc- 
 tion, the difference of language between 41 & 42 Viet. 
 c. 26, s. 28, and 6 & 7 Vict. c. 26, s. 40, is quite suffi- 
 cient to prevent Bartlett v. Gibbs (a) from being any 
 longer regarded as a binding authority. 
 
 [He was then stopped by the Court.] 
 
 Cave, J. I am of opinion that this appeal should be 
 dismissed. The case, in my judgment, falls plainly 
 
 (a) 1 Lutw. 73; S. O. 5 M. & (6) Ante, p. 46; S. C. L. R. 5 
 
 G. 81. C. P. D. 65. 
 
358 MICHAELMAS SITTINGS. 
 
 1884. within the words of the Act of 1878. That. Act is 
 
 FoBD entitled "An Act to amend the law relating to the 
 HoAB. Registration of Voters in Parliamentary Boroughs and 
 the Enrolment of Burgesses in Municipal Boroughs, and 
 relating to certain rights of Voting and' proceedings 
 before and appeals from Revising Barristers." It is 
 clear that in some particulars that Act did correct the 
 effect of previous decisions on former enactments. Its 
 28th section regulates the duties and powers of the 
 Revising Barrister. It enacts that " he shall correct 
 any mistake which is proved to him to have been made 
 in any list." In the present case a mistake was proved. 
 Consequently the Revising Barrister was bound to 
 correct it, unless the duty thus imposed upon him is 
 cut down by other words which are in the statute. 
 To show this, reference was made to sub-s. 13, which 
 enacts : "Except as herein provided, and whether any 
 person is objected to or not, no evidence shall be given 
 of any other qualification than that which is described 
 in the list or claim, as the case may be, nor shall the 
 Revising Barrister be at liberty to change the descrip- 
 tion of the qualification as it appears in the list, except 
 for the purpose of more clearly and accurately defining 
 the same." That sub-section begins " except as herein 
 provided," and means, as I read it, taking the exception 
 to apply to the whole section, that, except in cases 
 where this section so provides, the description of the 
 qualification is not to be changed. If that be the true 
 meaning of sub-s. 13, it does not cut down sub-s. 1. 
 It is argued, however, that the exception in sub-s. 13 
 does not refer to the whole section, but only to sub-s. 12, 
 and to the case of an. insufficiency in law, which is 
 there dealt with. But, in the first place, that does not 
 appear to me the natural meaning of the words ; and. 
 
XLVIII VICTORIA. 359 
 
 secondly, it is quite inconsistent with the language of 1884. 
 sec. 24, which provides that " any person who is entered Fobd 
 on any list of voters for a parliamentary borough " and Hoar. 
 " the name or situation of whose qualifying property 
 is not correctly stated in such list" — which was the 
 case here, 31, Prospect Place, being left out in the 
 4th column — may make a declaration. Then the 
 Act says that "the Revising Barrister shall receive 
 the declaration as evidence of the facts declared to.'' 
 But unless the Revising Barrister has power, where 
 there has been a mistake, to correct the list, what can 
 be the object of such an enactment, or why should the 
 voter be put to the trouble and expense of making a 
 declaration which is valueless, and which moreover, if 
 untrue, may subject him to imprisonment? I think 
 that sec. 24 throws valuable light on sub-s. 1, and on 
 the power in cases of mistake to make alterations, and 
 shows that the legislature was anxious to facilitate the 
 correction of mistakes, and to save the voter from the 
 trouble and expense of appearing before the Revising 
 Barrister for that purpose. 
 
 If the matter rested there, it would be perfectly plain. 
 The only difficulty that arises is from Bartlett v. 
 Gibbs (a) — a case decided on the former Registration 
 Act, and undoubtedly one which is entitled to the 
 highest respect. But the Act on which Bartlett v. 
 Oibbs (a) was decided differs from the Act of 1878, 
 and, in my judgment, differs so materially as to prevent 
 it .being applicable to the present case. Sec. 40 of 
 6 & 7 Vict. c. 18, after enacting " that the Revising 
 Barrister shall correct any mistake which shall be 
 proved to him to have been made in any list, &c.," 
 
 (a) 1 Luiw. 73 ; S.C.5 M.Ji G. 81. 
 
360 MICHAELMAS SITTINGS. 
 
 ^^^^- provides (and the proviso, as I read it, must be a proviso 
 Ford on the whole section) that " no evidence shall be given 
 HoAB, of any other qualification than that which is described 
 in the list. . . . nor shall the barrister be at liberty 
 to change the description of the qualification as it 
 appears in the list, except for the purpose of more 
 clearly and accurately defining the same." Now, if 
 that was a proviso on the whole section, the Revising 
 Barrister could not, under that statute, correct a mistake 
 in the description of the qualification, " except for the 
 purpose of more clearly and accurately defining the 
 same." And, when we contrast thftt section with 
 sec. 28 of the Act of 1878, the whole gi-oundwork of 
 the decision appears to me gone, for sec. 28, sub-s. 13, 
 expressly excepts the whole section from its operation. 
 Further, nowhere in the Act of 1843 is there any such 
 provision as in sec. 24 of the Act of 1878; and, when 
 we find sec. 24 expressly providing an easy mode of 
 correcting mistakes in the description of the qualifica- 
 tion, it follows in my judgment that the power to 
 amend must apply to such mistakes, and not solely to 
 cases which may be amended under sub-s. 12. As I 
 read sub-s. 12, it is both appropriate and necessary, 
 inasmuch as there may be mistakes by other persons 
 besides overseers, such as, for instance, where a claimant 
 describes his qualification, which is a warehouse, as a 
 workshop. In such a case the section provides for an 
 amendment, although the mistake is that of a claimant, 
 and not of an overseer. For these reasons I am of 
 opinion that the case of Bartlett v. Gibbs (a) does not 
 apply here, and that the decision of the Revising 
 Barrister was correct. 
 
 (o) 1 Lutw. 73 ; S.C. 5M.& G. 81. 
 
 i 
 
XLVIII VICTORIA. 361 
 
 As to the course which the Revising Barrister took 1884. 
 in striking out the numbers, I do not agree that it was tobd 
 correct. His proper course would have been to insert hoar. 
 "31, Prospect Place;" but, if he had done so, the 
 result would have been, in substance, the same. The 
 course which he adopted does not interfere with our 
 deciding that the appeal should be dismissed, and the 
 list amended. 
 
 Stephen, J., concun-ed. 
 
 Lord CoLEKiDGE, C.J. In this case I have enter- 
 tained, and stiU entertain, considerable doubt. If indeed 
 our decision necessarily concluded the matter, I should 
 feel that when a decision of the Court of Common Pleas, 
 whose jurisdiction is transferred to this Court, was clearly 
 wrong, it would be right and proper and our duty to 
 disregard it. But, where our decision is not con- 
 clusive, especially in registration matters, where uni- 
 formity of decision is often far more important than the 
 question how a particular matter should be decided, I 
 think it better to adhere to previous decisions. I am 
 unable to distinguish the present case, in principle, from 
 Bartlett v. Gibbs (a). In Bartlett v. &ibbs (a), where 
 the occupation during the qualifying year had been an 
 occupation of two houses in immediate succession, it 
 was held that the description of both houses must 
 appear in the 4th column, that being not the one in 
 which the nature of the qualification, but in which the 
 qualification itself is described. What is true of two 
 houses must equally be true of three or more, and 
 therefore, if Bartlett v. Gibbs (a) is correct, it follows 
 
 (a) 1 iMw. 73 ; S.C.f> M. <t G. 81. 
 
HOAB. 
 
 362 MICHAELMAS SIITINGS. 
 
 1884. of necessity from that decision that in the present case 
 ^;~ three houses ought to have appeared in the 4th 
 column. That being so, and there being clearly a mis- 
 take in the description of the- qualification, the question 
 arises, is the mistake one which can be corrected. Now 
 I must admit that I regret the opinion which I have 
 here formed, it being on a technical ground, which I 
 dislike. The mistake made was not that of a voter, but 
 of an overseer; and although no doubt, as in Onions 
 V. Bawdier (a), the maxim maybe cited — Vigilantibua 
 non dorm/ientihusjura subveniunt — one's common sense 
 is offended at the supposition of every voter in a large 
 borough carefully scrutinizing and examining the lists 
 of voters in order to ascertain whether, according to the 
 latest decision of the Court of Appeal in registration 
 matters, his qualification has been correctly described. 
 Still in Bartlett v. Gibbs (b) we have the decision of 
 the Court of Common Pleas, composed of four judges 
 of very high authority. The omission in that case was 
 in an overseer's list, and it was held not to be amend- 
 able. It is true that that ca.se was decided on. the 
 terms of 6 & 7 Vict. c. 18, s. 40, but the terms of that 
 section and of the 28th section of the Act of 1878 
 (41 & 42 Vict. c. 26) are as to this point almost 
 identical. Both the statement of the duty and the 
 limitation of it are in identical words. It is said — and 
 I do not say that there may not be much in it — that 
 the earlier statute does not apply for two reasons. 
 Firstly, because the words of the earlier statute are 
 " provided always ... no evidence shall be given, 
 &c.," and of the later statute " except as herein pro- 
 vided ... no evidence shall be given, &c." Pos- 
 
 (o) 2 Lutiv. 59 ; 5. C. 5 C. B. 66. (6) 1 Lviw. 73 ; S.C.5 M.Je G. 81. 
 
XLVIII VICTORIA. 363 
 
 sibly there may be more in that difference of language 1884. 
 than strikes my mind, but the result appears to me ford 
 under both statutes to be that an absolute duty is hoIk. 
 enjoined, subject to a certain limitation, and that 
 Bartlett v. Gihhs (a) has decided that the present case 
 falls within the limitation. Secondly, an argument is 
 derived from sec. 24 of the Act of 1878, there being no 
 such section in the Act of 1843, nor any such section as 
 sec. 28, sub-s. 12. I think, however, that sec. 24 and 
 sec. 28, sub-s. 12, may both be limited to the subject 
 matter with which they deal. In cases that fall within 
 sec. 28, sub-s. 12, sec. 24 supplies a convenient mode of 
 giving evidence. Being unable to see any substantial 
 distinction in reference to the point before us Jaetween 
 the two statutes, I think that Bartlett v. Gibhs (a) still 
 applies, and, if so, the Revising Barrister was wrong. T . 
 pronounce this judgment, however, with great hesita- 
 tion, as both my learned brothers are of a contrary 
 opinion. 
 
 Decision affirmed. 
 
 Bompas applied for leave to appeal, which was 
 granted (6). 
 
 Solicitors— For Appellant, J. E. Fox & Co., 
 for H. & B. T. Ford, Exeter. 
 
 For Respondent — T. Hamilton, 
 
 for /. W. Friend, Exeter. 
 
 (a) 1 Lutw. 73 ; S. 0. 5 M. <t G. (5) The appeal was not proceeded 
 81. with. 
 
364 
 
 MICHAELMAS SITTINGS. 
 
 Blosse, Appellant; Wheatley, Eespondent. 
 
 1884. 
 
 Dec. 18. 
 
 A voter's 
 qualification 
 was entered in 
 the borough 
 lists " offices, 
 successive 
 occupation," 
 "Hujh Street 
 and Oharles 
 Street,' but 
 during the 
 whole of the 
 qualifying 
 year he had 
 occupied the 
 office in Sigh 
 Street only. 
 The misde- 
 scription was 
 due to an 
 erroneous 
 belief of the 
 overseers. 
 Held, that 
 the Revising 
 Barrister had 
 power to 
 amend, and 
 ought to have 
 amended, and 
 not to have 
 expunged the 
 voter. 
 
 Per Lord 
 Coleridge, C.J. 
 That the case 
 fell vrithin 
 41 & 42 Vict. 
 c. 26, B. 28, 
 sub-s. 12. 
 
 AT a Court held before the Revising Barrister ap- 
 pointed to revise the lists of voters for the borough of 
 Cardiff on the 25th September, 1884, objection was 
 duly made to the name of the appellant being retained 
 in the parliamentary and municipal list of voters 
 (Division I.) for the parish of Saint John the Baptist, 
 West Ward, in the said borough. 
 
 The name of the appellant appeared in the said list, 
 as imder — 
 
 No. 
 
 48 
 
 Name of Voters 
 
 in full, 
 
 Surname being 
 
 first. 
 
 Mosae, Harry 
 Francis Lytich. 
 
 Place of 
 Abode. 
 
 Nature of 
 Qualification. 
 
 Gabalva House, Offices, succes- 
 Catkedral Road, aive occupation, 
 
 Name and 
 Situation of 
 Qualifying Pro- 
 perty. 
 
 High Street and 
 Charles Street. 
 
 It was proved that during the whole of the qualify- 
 ing year the appellant had occupied one only of the 
 said specified offices, viz., that in High Street, and would 
 have had by reason of such occupation a good and sufii- 
 cient qualification had it been so described on the said 
 list. 
 
 It was further proved that the misdescription occurred 
 solely through the overseers of the said parish 
 erroneously believing that the appellant had occupied 
 an office in Charles Street during the latter part of the 
 
XLVIII VICTOEIA. 365 
 
 qualifying year, and that he had not continued in un- 1884. 
 interrupted possession in High Street (as the fact was) Blosse 
 during the whole of the said period. Acting on this Wheatley. 
 erroneous impression they by the said mistake so 
 described the qualifying property as it appeared in the 
 said list. 
 
 The appellant had not sent in any declaration for 
 correcting misdescriptions under 41 & 42 Vict. c. 26, 
 s. 24, nor had he made any claim to have his name 
 inserted in the said list in respect of his occupation 
 during the whole of the qualifying year % of the said 
 ofi&ce in High Street only. 
 
 The Revising Barrister was thereupon asked to amend 
 the description in the 3rd and 4th columns by striking 
 out the words "successive occupation " in the 3rd column, 
 and also by striking out the words " and Charles Street " 
 in the 4th column. 
 
 The Revising Barrister was of opinion that to make 
 the required amendments would be a change in the 
 description of the qualification which he was not at 
 liberty to make, and he therefore held the objection 
 fatal and declined to amend. The name was accordingly 
 expunged by him from the list of voters. 
 
 If the Court should be of opinion that the Revising 
 Barrister's decision was right, the list of voters was to 
 remain as revised ; but if the Court should be of 
 opinion that the decision was wrong, the name of the 
 appellant was to be restored, with or without amend- 
 ment, as the Court should think fit. 
 
 McConnell appeared for the appellant. 
 
 The Court, however, called upon . 
 
 D. BrynmSr Jones, for the respondent. The case 
 
36 G MICHAELMAS SITTINGS. 
 
 1884. is governed in principle by Porrett v. Lord (a), which 
 
 Blosbe is its exact converse. The principle recognised in 
 
 Whbatley. Porrett v. Lord (a) is that the Eevising Barrister has 
 
 no power to change the qualification, but only to give 
 
 it a better identification. Here it is sought to change 
 
 the qualification. 
 
 [Lord Coleridge, C.J. The present case appears to 
 be concluded by the terms of siib-s. 12 of 41 & 42 Vict. 
 c. 26, s. 28.] 
 
 It is submitted that that sub-section does not apply. 
 Its application is limited to cases where the qualifi- 
 cation is the same, but is incorrectly described. In 
 the present case there is neither a claim under 6 & 7 
 Vict. c. 18, s. 15, nor a declaration under sec. 24 of 
 41 & 42 Vict. c. 26. The Revising Barrister had, 
 therefore, no power to receive evidence as to the true 
 qualification. 
 
 Lord Coleridge, C.J. In this case I feel no difli- 
 culty whatever as to our decision. In my judgment 
 the case falls distinctly within the terms of sub-s. 12 of 
 41 & 42 Vict. e. 26, and, after the elaborate discussion 
 which the matter has undergone in For-d v. Hoar (b) 
 I think it unnecessary to say more than that here, in 
 my opinion, the amendment could, and ought to, have 
 been made. 
 
 Stephen, J. This is a much plainer case than Ford 
 v. Hoar (b), where the Lord Chief Justice dififered. 
 
 {a) Ante, p. 46 ; fi^. C. L. R. S (6) Ante, p. 351 : S. C. L. R. 14 
 
 C. P. D. 66. Q. B. D. 507. 
 
XLVIII VICTORIA. 367 
 
 Cave, J., concurred. 1884. 
 
 Decision reversed. Blossb 
 
 V. 
 
 Wheatlet. 
 Attorneys — For Appellant, Oosling & Co., agents, 
 
 for H. F. Lynch Blosse, Cardiff. 
 
 For Respondent, E. Andrew, agent, 
 
 for T. L. Wheatley, Cardiff. 
 
368 MICHAELMAS SITTINGS. 
 
 BoLLEN, Appellant ; Southall, Eespondent. 
 
 1884. A T a Court held by the Revising Barrister appointed 
 to revise the list of voters for the city of Worcester, 
 
 Dec. 19. 
 
 objection William Thomas Harris, of 24, George Street, in the 
 sllrswls'to"' sS'id city, objected to the name of the appellant being 
 the iBhMiIme retained in the Blockhouse list of persons (Division I.) 
 I'^r m^"''^'°" entitled to vote at the election of members to serve in 
 
 1. 1 here are 
 
 3 lists of par- Parliament. 
 
 liamentary 
 
 voters for the The notice of objection given by the said WilliaTn 
 
 B'oclchouse, 1 
 
 Householders ThoTTias Harris to the overseers was as follows : — 
 
 and occupiers ; 
 
 2 Freemen ; 3 << pp^ jj^g overseers of the parish (township) of the Blockhouse. 
 
 Lodgers ; but 
 
 the only one of " I hereby give you notice that I object to the names of each and 
 
 V*^^^ rt'^ every person mentioned and described below being retained in the 
 
 first. Held, Bhckhouse list of persons Division I entitled to vote at the election of 
 
 ,.j . ,, a member (or members) to serve in parliament for the parliamentary 
 
 events, suffi- borough of Worcester. 
 
 the"uJt To"'^^ " ^*'*'* "*^^ ^2"'* "^^y °* August, 1884: 
 
 which the ob- " Signed WiUiam Thomas Earns of 24, George 
 
 ferred to Street, Worcester, on the list of parlia- 
 
 authorise an mentary voters Division 1, for the parish 
 amendment by , « ,, 
 the Revising °* **• ^"'*'^- 
 Barrister un- 
 der sec. 28, Here followed the names, abode, nature of qualifica- 
 sub-s.2,of41& . ^ 
 42 Vict. 0. 26. tion, and street where the property is situated of the 
 
 appellant, and of other persons whose names appeared 
 
 in a schedule to the case. 
 
 There are three lists of parliamentary voters for the 
 
 Blocl'house, viz.: — 
 
XLVIII VICTORIA. 369 
 
 1. Householders and occupiers. 1884. 
 
 2. Freemen. Bollkn 
 
 3. Lodgers. Sobthall. 
 The name of the appellant was on the Parliamentary 
 
 List 1, Division 1, for the Blockhouse. 
 
 It was contended on behalf of the appellant that 
 the notice of objection given to the overseers was in- 
 sufficient, inasmuch as the said notice did not specify 
 the list of parliamentary voters to which the objection 
 referred, as required by the note to the form of notice 
 of objection given in the schedule of 41 & 42 Vict. 
 c. 26. 
 
 It was further contended on behalf of the appellant 
 that the Revising Barrister had no power to amend the 
 notice of objection. 
 
 It was contended on behalf of the objector that the 
 said omission did not invalidate the notice of objection. 
 
 The Revising Barrister decided that the notice of 
 objection ought to have specified the list to which the 
 objection referred, and by reason of the said omission 
 was invalid. 
 
 The Revising Barrister was then asked to amend the 
 notice of objection under sec. 28, sub-s. 2 of the Parlia- 
 mentary and Municipal Registration Act, 1878, by 
 supplying the said omission ; and it was contended that 
 it was a mistake within the meaning of sec. 28, sub-s. 2, 
 and that the Revising Barrister could and ought to 
 correct it. 
 
 The Revising Barrister decided that he had power 
 to amend the notice, and did amend it accordingly 
 by supplying the said omission, and expunging the 
 names of the appellant and the other persons. in the 
 schedule. 
 
 If the Court should be of opinion that the Revising 
 
370 MICHAELMAS SITTINGS. 
 
 1884. Barrister had no power to amend the notice of objec- 
 BoLLEH tion, the register was to be amended by including the 
 
 V. 
 
 SoDTHALL. name of the appellant and the said other persons. 
 
 Willis Bund, for the appellant. The notice of 
 objection is bad for not specifying the particular list on 
 which the name of the person objected to appears. 
 That is expressly required by the note to Form I. in 
 the schedule to 41 & 42 Vict. c. 26. The lists in 
 boroughs made out by the overseers are three in number, 
 and they are classified under separate heads of quali- 
 fication. Thus No. 1 contains the name of all persons 
 qualified as householders or occupiers ; No 2, of those 
 qualified in respect of reserved rights ; and No. 3, of 
 those qualified as lodgers. Hall v. Cropper (a) estab- 
 lishes that the notice must inform the overseers to 
 which of these three different Hsts the objection is made, 
 otherwise that the notice is invalid. Here, although 
 the notice specifies the division of the list, as the note 
 to Form I. requires, it does not specify the list itself. 
 The question, however, which the Revising Barrister 
 has reserved is not as to the validity of the notice, but 
 whether or not he had power to amend. It is sub- 
 mitted that there is no power to amend an entirely bad 
 notice. If such a power existed, its effect in the case 
 ■ of a man with more than one qualification, would be to 
 enable the Revising Barrister to select at his option to 
 which qualification the notice of objection should apply. 
 It can never have been intended that a power such as 
 this should be conferred on the Revising Barrister, but 
 only that he should have power to amend a notice of 
 which the terms are insufficient or inaccurate. James 
 
 {a) Ante, p. 20 ; S. C. L. R. 5 0. P. D. 73. 
 
XLVIII VICTORIA. 371 
 
 V. Howarth (a) is an authority entirely in accordance 1884. 
 with that view. In that case the only defect in the Bollen 
 notice was that the objector was stated to be " on the Southall. 
 list of voters," instead of " on the list of parliamentary 
 voters." Bennnan, J. there pointed out that it would 
 necessarily be assumed that the objector's name was 
 upon the list which alone would entitle him to object, 
 viz., a list o{ parliamentary voters ; yet Lord Coleridge, 
 C.J. and Lindley, J. both thought that, unless the word 
 " parliamentary " had been inserted, the notice would 
 have been invalid. Here, for anything that appears, 
 the person who gave the notice may not have been 
 under a mistake. The omission on his part to specify 
 the list was very possibly intentional. The plain direc- 
 tions of the Act of Parliament not having been complied 
 with, it is submitted that the case is one to which the 
 power of amendment does not apply. 
 
 R. S. Wright for the respondent. The notice of 
 objection here was, it is submitted, perfectly good as 
 originally framed ; but if that be doubtful, it is clear 
 that the suggested error was amendable as a mistake. 
 The only Hst which is made out in divisions is list 
 No. 1 ; consequently in specifying the division of the 
 list, on which the name appeared, the notice did, in 
 effect, specify the Hst. It certainly ascertained it in 
 such a way as to be understood by anyone who had to 
 act upon the notice. The error, if it be one, is a mere 
 inaccuracy. * In Adams v. Bostoeh (a) it was held that 
 an omission might be amended as a nxistake, where no 
 one had been misled. Here, it is true, that it is not 
 expressly found, that no one has been misled, but it is 
 
 (a) Ante, p. 87; S. C. L. R. 5 C. (a) Ante, p. 275; S. C. L. R. 8 
 
 P. D. 225. 0,- B. D. 259. 
 
372 MICHAELMAS SITTINGS. 
 
 1884. perfectly clear that no one could have been. By 6 & 7 
 BoLLEN Vict. c. 18, s. 101, an inaccurate description of any 
 
 V. 
 
 SoHTHALi. thing described in a notice is not to abridge the opera- 
 tion of the Act with respect to such thing, provided it 
 be so denominated in the notice as to be commonly 
 understood. The only list capable of being divided 
 being list No. 1, it is evident that "Blockhouse list, 
 division 1," would be commonly understood by those 
 conversant with such matters as meaning " Blockhouse 
 list. No. 1, division 1." 
 
 Willis Bund in reply. The question arises under 
 41 & 42 Vict. c. 26, and there is nothing in that Act to 
 render sec. 101 of 6 & 7 Vict. c. 18 applicable. The 
 directions of 41 & 42 Vict. c. 36 not having been complied 
 with, the notice is bad and cannot be amended. The 
 case of Freeman v. Newman {a) shows how strict the 
 Court has always been in enforcing the requirement of 
 the legislature as to notices of objection. 
 
 Lord Coleridge, C.J. I am of opinion that the 
 power of amendment has been in this case properly 
 exercised. The notice, although informal, does in sub- 
 stance comply with the requirements of the Act, as it 
 does not withhold any information which the Act in- 
 tended should be given. It is said that " Blockhouse 
 list, division 1 " does not specify the list, but the only 
 list which is made out in divisions is, as has been 
 shown, list No. 1. It is quite true that by sec. 8 the 
 schedule and notes are to have effect as if enacted in 
 the body of the Act, and that the requirements therein 
 are not merely directory, but must be complied with. 
 
 (a) Ante, p. 342; 5. C. 12 L. R. Q. B, D. 373. 
 
XLVIII VICTORIA. 373 
 
 In the present case, however, I think that the power of 1884. 
 amendment was well within the powers of the Revising Bollen 
 
 V. 
 
 Barrister, and that those powers would be reduced to Southall. 
 nothing if they did not extend to a case like this, being, 
 as it is, one of mere inaccuracy of description. I should 
 certainly be sorry to extend the power of amendment so 
 as to introdii'ce any laxity of practice, which might be 
 used to work injustice, but so far as regards our decision 
 in the present case, I am clearly of opinion that the power 
 of amendment existed, and was properly exercised. 
 
 Stephen, J. I am of the same opinion. The notice 
 of objection, in substance, gave the required informa- 
 tion, and sufficiently identified the list. The only error 
 was in point of form or accuracy of description. I wish 
 to add, however, that I quite agree with what has fallen 
 from my Lord that it is not desirable that the power of 
 amendment should be extended in such a way as might 
 be calculated to introduce a laxity of practice. 
 
 Cave, J. I agree that this case falls clearly within 
 the power of amendment contained in sec. 28, sub-s. 2 
 of the Act of 1878, but I desire to ■ reserve to myself 
 entire freedom of decision in any future case. By sec. 
 28, sub-s. 2 a discretion is given to the Revising Barris- 
 ter. This case falls clearly within the exercise of that 
 discretion, but I think that the discretion might be 
 applicable to cases of greater difficulty than that with 
 which we have here to deal. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Church, Rendell & Co- 
 For Respondent, W. H. Stallard. 
 
CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 QUEEN'S BENCH DIVISION 
 
 OF 
 
 THE HIGH COURT OF JUSTICE, 
 
 UNDER STATS. 6 & 7 VICT. c. 18. 
 
 AND 
 
 41 & 42 VICT. c. 26, 
 
 DUBING 
 
 MICHAELMAS SITTINGS, 1884, 
 
 IN THE 
 FORTY -EIGHTH YEAR OF QUEEN VICTORIA. 
 
 Ford, Appellant; Hoar, Respondent. 
 
 AT a Court held by the Revising Barrister appointed 1884. 
 Dec. 18. 
 to revise the list of voters for the city and county of the . 
 
 city of Exeter, on the 15th September, 1884, the res- uficatiTn w^' 
 pendent's name appeared in the list of voters for the borough ^Hsts* 
 parish of Saint Thomas the Apostle as the occupier of " dweliing- 
 
 * ^ ^ houses in suc- 
 
 dwellifig-houses in succession, and the entry and de- "ession," "44, 
 
 Oxford Street, 
 
 scription on the said list were as follows : — and 34, Pros- 
 
 pect Place." 
 The voter, having occupied 31, Prospect Place, betvireen his occupation of the other 2 
 houses, had, in lact, occupied 3 houses in succession during the qualifying year^ 
 The overseer knew this, but by mistake omitted to insert 31, Prospect Place, aloug 
 with the other 2 houses. Held, per Stephen, 3. and Cave, J. (Lord Coleridge, C.J. 
 ditsentiente) that the mistake was antendable under 41 & 42 Vict. c. 26, s. 28, sub-s. 1. 
 The Revising Barrister had amended by striking out the numbers of the houses. 
 Held, that this was wrong, but that it was in the power of the Court to make the 
 proper amendment. 
 
376 
 
 1885. 
 
 Atkinson 
 
 V. 
 CoiLAfiD. 
 
 MICHAELMAS SITTINGS. 
 
 of occupation voters for the parish of >Sf^. Mary, North- 
 gate, in the said city, on the ground that he had not 
 occupied the premises, in respect of which he appeared 
 on the list, a sufficient time, and that his occupation was 
 not as owner or tenant. 
 
 The name and qualification of the appellant appeared 
 on the list as follows :— 
 
 Name. 
 
 Place 
 of Abode. 
 
 Nature of 
 Qualification. 
 
 Description of . 
 Qualifying Property. 
 
 AtMnson, John. 
 
 Barracla. 
 
 Pwrtofahome. 
 
 Barracks. 
 
 The appellant was a sergeant in the 7th Dragoon 
 Guards, the dep6t of which was attached to the cavalry 
 dep&t at Canterbury, such cavalry dep6t consisting of 
 the dep6t troop of every cavalry regiment in India. 
 
 As such sergeant he inhabited, by virtue of his 
 service in the army, 2 rooms on the first floor in a block 
 of buildings in the cavalry barracks, and had inhabited 
 the same 2 rooms for more. than 12 calendar months 
 immediately preceding the ISth of July, 1885. The 
 
 dwelling-houee by virtue of service), applies to service m the Army, and the Crown,if 
 affected, is bound by the statute, being expressly named in it. 
 
 SemUe, however, that the Crown is not affected. 
 
 The claimant, a non-commissioned ofiScer in the army, as such, had during the 
 qualifying year inhabited two rooms in a block of buildings within a barrack inclosure. 
 An officer, superior in raiik to the claimant, lived in the same block, and the com- 
 manding officer in a detached house within the inclosure. The claimant's rooms 
 (Which were partly furnished by the Government) were liable to be inspected at stated 
 times ; also to be entered by the commanding officer at any time, and, for the purpose 
 of enforcing order, by the superior officer living in the same block. The commanding 
 officer could at any time close the barrack gates ; he could also change the claimant's 
 rooms. Held, that the claimant's rooms constituted a " dwelling-house," which the 
 claimant inhaljited by virtue of service, within sec. 3 of the Representation of the 
 People Act, 1884. 
 
 Held also, that, on the above facts, there was no dwelling-house of which the 
 claimant occupied a part, and the senior officer living in the same block the whole. 
 
 Held also, that the whole block was not inhabited by anyone under whom the 
 claimant served. 
 
XLIX VICTORIA. 377 
 
 said rooms were used by him as a bedroom and sitting^ 1885. 
 room respectively. Of the furniture the Government Atkinson 
 supplied bed, table, two chairs, fender, and fire-irons, collakd. 
 A board with a list of these articles (which the appel- 
 lant was not allowed to remove) was hung up in the 
 appellant's sitting-room. All other furniture the appel- 
 lant supplied himself. 
 
 The appellant's rooms opened into a passage used in 
 common by himself and other non-commissioned officers, 
 the passage communicating with a staircase, and that 
 again with a passage on the ground floor, which led to 
 the front door. No one had a key of the rooms but the 
 appellant. 
 
 The appellant was obliged to be in his quarters by a 
 stated hour every evening. 
 
 In accordance with the Queen's regulations and 
 certain standing orders issued by the commanding 
 officer, it was the duty of the medical officer to inspect 
 the appellant's quarters as well as all other portions of 
 the barracks every week, and report as to the condition 
 thereof. It was also the duty of the orderly officer, the 
 troop officer, the quartermaster, and orderly troop ser- 
 geant-major to visit such quarters at stated times, and 
 to report as to the order and condition in which the 
 same were found, and such inspection did, in fact, from 
 time to time take place, for which purpose the appellant, 
 on receiving notice, was bound to admit the above- 
 mentioned persons to his quarters, and they would have 
 power, if refused admittance, to break open the doors 
 and enter. 
 
 There were non-commissioned officers of superior 
 rank to the appellant who lived in the same block. It 
 was the duty of the senior non-commissioned officer for 
 
 r F 2 
 
378 MICHAELMAS SITTINGS. 
 
 1885; 
 
 the time being in each block, in case of need, to main- 
 
 Atkinson tain order. 
 
 V. 
 
 CoLLABD. In case the appellant should be disorderly or make 
 himself a nuisance, it would be the duty of such senior 
 non-commissioned ofificer for the time being to enter the 
 appellant's room to enforce order. 
 
 The colonel commanding the whole of the dep&t lived 
 in a detached house away from the block in which the 
 appellant lived. The colonel's house was within the 
 wall, which extended round the various barracks and 
 barrack yards. The commanding officer could at any 
 moment enter any part of the barracks, including the 
 appellant's rooms, for any cause which might seem to 
 him reasonable, though it was usual for him to give 
 notice before making a general inspection; and he 
 further had the power of closing the barrack gates, and 
 forbidding any person to enter or leave the barracks at 
 any time. 
 
 The appellant was liable at any time to be ordered 
 by the commanding oiEcer to change from the quarters 
 assigned to him and to live in others, and he would be 
 bound to obey such orders. 
 
 It was contended, on behalf of the appellant, that he 
 himself inhabited a dwelling-house by virtue of his 
 service, and that the dwelling-house was not inhabited 
 by any person under whom he served in such service 
 within the meaning of sec. 3 of the Eepresentation of 
 the People Act, 1884, and that he must therefore be 
 deemed to be an inhabitant occupier of his quarters as 
 a tenant within the meaning of that Act and of the 
 Representation of the People Acts. 
 
 It was contended for the respondent, (1) that in 
 order to constitute the appellant a person deemed to 
 be an inhabitant occupier of a dwelling-house within 
 
XUX VICTORIA. 379 
 
 the meaning of the said section, he must have had 1885. 
 during the prescribed period the separate and exclusive Atkinson 
 occupation of his quarters, which the appellant had not coL^mj. 
 had; (2) that assuming upon the facts proved in evidence 
 that the appellant could be said to have inhabited a 
 dwelling-house by virtue of his service within the 
 meaning of the first part of the said section, yet that 
 the dwelling-house in the proviso or second part of the 
 said section must be taken in this case to be the 
 barracks as a whole, or at any rate the block in which 
 the appellant lived, in either of which cases the 
 dwelling-house in such larger sense was inhabited by a 
 person or persons under whom the appellant served, 
 and that he could not therefore be deemed to occupy 
 as tenant within the meaning of that section. 
 
 The names of twenty-eight other persons mentioned in 
 a schedule were objected to under similar circumstances. 
 
 The Revising Barrister held that the occupation by the 
 appellant and such other persons of their several quarters 
 had not been of such a separate and exclusive nature as 
 to constitute him a person deemed to be an inhabitant 
 occupier of a dwelling-house as tenant within the true 
 intent and meaning of the Representation of the People 
 Act, 1884. 
 
 He further held that, if he were wrong in his decision 
 on this point, the dweUing-house in the proviso or 
 second part of the said section must be taken to mean 
 either the barracks as a whole, or the block of buildings 
 in which the appellant's quarters were situated, and 
 that in either of such views the dwelling-house in such 
 extended sense was inhabited by a person or persons 
 under whom the appellant served. 
 
 He therefore expunged the names of the appellant, 
 and the other persons in the schedule. 
 
380 MICHAELMAS SITTINGS. 
 
 1886. Crump, Q.C. {H. Bargrave Beane with him), for the 
 
 Atkinson, appellant. The decision of the Eevising Barrister that 
 CoLLAKD *^® appellant was not entitled to a vote was wrong. 
 The appellant was entitled under sec. 3 of the Repre-i 
 sentation of the People Act, 1884 (48 Vict. c. 3), which, 
 in creating what has been termed the service franchise, 
 has got rid of the necessity of showing what was 
 formerly essential to qualification, viz., that there haSf 
 been an inhabitancy of the dwelling-house as an occu- 
 pying tenant. Sec. 3 enacts : " Where a man himself 
 inhabits any dwelling-house by virtue of any office, 
 service, or employment, and the dwelling-house is not 
 inhabited by any person under whom such man serves 
 in such office, service, or employment, he shall be 
 deemed for the purposes of this Act, and of the Repre-^ 
 sentation of the People Acts, to be an inhabitant 
 occupier of such dwelling-house as a tenant." Here the 
 case finds that the appellant, by virtue of his service in 
 the army, had inhabited two rooms in a block of buildr 
 ings for the requisite period. It is submitted that 
 these two rooms constituted a dwelling-house within 
 the section. The question whether they did so is one of 
 fact, and the case does not find that they did not. It 
 merely finds certain facts in reference to the furniture, 
 and as to the control which was exercised by the 
 military authorities over the rooms, from which th^ 
 Revising Barrister has drawn the inference that the 
 appellant had not separate and exclusive occupation of 
 them. But looking to the scope of sec. 3 it is submitted 
 that these findings are immaterial. The appellant 
 alone lived in these rooms and had the use of then:^. 
 A man does not the less inhabit his rooms because hp 
 is liable to have them entered, even forcibly, or even 
 because he may be liable to be turned out of them. 
 
V. 
 
 COLLARD. 
 
 XLIX VIOTOKU. 381 
 
 That tlie section contemplated the existence of the 1885. 
 franchise, although the voter might not in the strictly Atkinson 
 legal sense have the occupation of the rooms in which 
 he lived, is manifest, for it says that he shall be deemed, 
 for the purposes of this Act and the Representation of 
 the People Acts, " to be an inhabitant occupier" "as » 
 tenant " — ^in other words, that for the purposes of these 
 Acts he shall be deemed to be what in the strictly legal 
 sense he is not. The instructions contained in the 
 schedules to the Registration Act, 1885, headed "instruc- 
 tions in case of what is commonly called the Service 
 Franchise " (a), show clearly what was the intention 
 of the Legislature, since they instance as illus- 
 trations of this kind of qualification the occupation 
 by a servant of rooms over a stable, or a detached 
 building, such as a laundry. Yet the servant in such a 
 e^se would obviously be liable to restrictions on his 
 user, analogous to those to which the soldier is here 
 subjected. The master could at any time enter his 
 servant's rooms without being a trespasser, and could 
 certainly make such regulations as he pleased for the 
 purpose of enforcing good order, or of securing cleanli- 
 ness and decency. That the forms and instructions in 
 the schedules to the Registration Act, 1885, have, in 
 effect, the same force as an enactment, is shown by the 
 language of sec. 18, which enacts that they " shall be 
 used and observed in all cases to which they apply," 
 and substitutes them for the forms and instructions 
 which were previously in existence. 
 
 Secondly, the Revising Barrister was wrong in 
 coming to the conclusion that there was a dwelling- 
 house, of which the appellant's rooms formed part, 
 
 (o) Second Schedule, General Forma, Part II., Form A, and Third 
 Schedule, General Forma, Form A. 
 
CoLIiABD. 
 
 382; MICHAELMAS SITTINGS. 
 
 1885. inhabited by a person under whom the appellant 
 Atkinson served. The section could not have contemplated that 
 _^'__ the mere fact of the residence in the same block of 
 buildings of an officer of higher rank than the appel- 
 lant would of itself deprive him of the franchise. 
 Whether he served under such officer must be a 
 question of fact, but no facts are stated in the case to 
 warrant such a conclusion. The true view appears to 
 ■ be that each non-commissioned officer served under the 
 Crown, and inhabited his own rooms only, not the 
 entire block in which the rooms were situated. The 
 senior non-commissioned officer, living in the block, 
 stood in the same position as the rest, and, like the 
 rest, inhabited his own rooms only. As regards occu- 
 pation, the legal occupation of the whole block was, no 
 doubt, in the Crown ; but, as regards inhabitancy, it 
 cannot, it is submitted, be reasonably maintained that 
 any one but the appellant inhabited the appellant's 
 rooms. The other suggestion that the colonel, who 
 lived in a detached house, inhabited the appellant's 
 rooms, is clearly not maintainable; nor could it be 
 reasonably held that the whole of the barracks consti- 
 tuted one dwelling-house. 
 
 Asquith for the respondent. The decision of the 
 Revising Barrister was right. The first objection to 
 the appellant's qualification is, that, in order to qualify 
 him, it was necessary to sho)v "that he was the in- 
 habitant occupier of a dwelling-house. The appellant, 
 it is submitted, was not an inhabitant occupier at all. 
 The object of sec. 3 of the Representation of the People 
 Act, 1884, was not the. creation of a new franchise, but 
 simply to extend the dwelling-house franchise so as to 
 include a class of inhabitant occupiers who, upon 
 
XLIX VICTOKIA. 383 
 
 technical grounds, were excluded from that franchise, as 1885. 
 not being tenants, but who, in every other respect, Atkinson 
 were entitled to it, as being in the position of house- coLLAKOi 
 holders. That the Legislature considered the so-called 
 Service Franchise to be a branch merely of the house- 
 hold franchise is evident from the instructions to 
 overseers contained in the second schedule of the 
 Kegistration Act, 1885 (Part I, par. 7), and in the third 
 schedule (Part I., par. 5). Dobson v. JoTies (a), and 
 Clarke v. Overseers of St. Mary, Bury St. Edmunds (b), 
 are illustrations of the hardship which arose in parti- 
 cular cases, and which it was the object of sec. 3 of the 
 Representation of the People Act, 1884, to remove. 
 Looking at the terms of sec. 3, it is evident that that 
 section creates no new franchise. It merely supple- 
 ments the Act of 1867 — the Act which created the 
 dwelling-house franchise — and brings an additional class 
 within its provisions. To satisfy the conditions of the 
 dwelling-house franchise it is still necessary that a 
 man should have been an inhabitant occupier, though 
 it is no longer necessary that he should have occupied 
 as a tenant. 
 
 Secondly, the rooms where the appellant lived, in 
 order to perform his military duties, did not constitute 
 a dwelling-house. It is true that 41 & 42 Vict. c. 26, 
 s. 5, enacts that "in and for the purposes of the 
 Representation of the People Act, 1667, the term 
 " dwelling-house " shall include any part of a house 
 where that part is separately occupied as a dwelling ; " 
 and, also, that " for the purposes of any of the Acts 
 referred to in this section, where an occupier is 
 entitled to the sole and exclusive use of any part of a 
 
 (a) 1 Zutw. 105; S. 0., 5 M. (6) K. S 0. 90 ; S. C, 1 O. B. N. S. 
 & a. 112. 23. 
 
384 
 
 MICHAELMAS SITTINGS. 
 
 1885. touse, that part shall not be deemed to be occupied 
 Atkinson otherwise than separately, by reason only that the occu- 
 €6llabd P^^'^ ^® entitled to the joint use of some other part." 
 But here, it is submitted, the appellant had not the 
 sole and exclusive use of his rooms. The case of a 
 coachman having rooms over a stable is distinguishable; 
 No doubt the instructions in the RegistrationAct, 1885,' 
 show that, where there is a structural severance of the 
 qualifying premises from the master's house, a servant 
 may have so exclusive a use of the qualifying premises 
 as to constitute them a dwelling-house. Here it is true 
 that the commanding officer's house is structurally 
 severed from the block where the appellant lives ; but 
 the power to enter the appellant's rooms is not coniined 
 to the commanding officer. The case shows that other 
 superior officers could enter for purposes of inspection 
 and discipline. Again, the powers here are more arbi- 
 trary than those which exist in a case of master and 
 servant, where the relation is one of contract, and where 
 the grounds for entering and times of entry must be 
 reasonable. In the present case there is power in a 
 superior officer to enter at any time. 
 
 [Lord Coleridge, C.J. Only for purposes of mili- 
 tary discipline.] 
 
 In Bradley v. Baylis (a) the Court of Appeal held 
 that an inmate had not the status of an occupier if the 
 landlord had control. 
 
 [Grove, J. Does not the relation of master and 
 servant make a difference in what is called the service 
 franchise ? If the master could enter the premises in- 
 
 (a) Ante, p. 163 ; S. C.,L. R. 8 Q. B. D. 195. 
 
XLIX VICTORIA. 
 
 385 
 
 1885. 
 
 Atkikson 
 CollabdI 
 
 LOWRY 
 
 habited ' by bis servant for just and reasonable cause'j 
 such as to secure proper cleanliness and decencjj 
 would that be inconsistent with the servant's occupa- 
 tion ?] 
 
 The relation of master and servant must, no doubt, oollarix 
 involve greater power of control than that of landlord 
 and tenant. Still, on the grounds that have been 
 pointed out, the present case is, it is submitted, dis- 
 tinguishable from that of a servant in a detached house, 
 such as the instructions contemplate. 
 
 Thirdly, the dwelling-house, of which the appellant's 
 rooms formed part, was inhabited by a person under 
 whom the appellant served. The appellant served 
 under the superior officer living in the same block> 
 just as a bank clerk would.be held to-serve under the 
 maiiager. The block, it is submitted, was a dwelling- 
 house, of which the appellant's rooins formed parti 
 There may be difficulty in maintaining that the whole 
 barracks constituted a dwelling-house. If they did;, 
 the appellant would be, disentitled as serving under the 
 colonel. 
 
 LoWRY V. CbLLABI). 
 
 TN this case, also stated by the Eevising Barrister for 
 the city of Canterbury, the appellant was a captain in 
 the King's Dragoon Guards, commanding the troop of 
 his regiment attached to the cavalry depot at Canter- 
 hv/ry. He had occupied during the qualifying period 
 a room in a block of buildings, called the officers' 
 quarters, in the cavalry barracks. Another officer. 
 
386 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 LOWRT 
 
 T 
 
 COLLAED. 
 
 Sedqwick 
 
 V. 
 
 Neville 
 
 Major Hickman, occupied similar quarters in the same 
 block, and was the .senior officer occupying quarters in 
 such block. The facts did not differ substantially from 
 those in the preceding case, but the Eevising Barrister 
 had here found that the appellant had occupied his 
 room under such circumstances as to constitute the in- 
 habitancy of a dwelling-house by virtue of service in 
 the army. 
 
 The Eevising Barrister, however, expunged the 
 appellant's name, on the ground, first, that the barracks 
 as a vrhole must be taken to be the dwelling-house 
 within the proviso or second part of the 3rd section of 
 the Representation of the People Act, 1884, and must 
 be taken to be inhabited by a person under whom the 
 appellant served, viz., the colonel commanding the 
 cavalry dep6t; or, secondly, if the particular block of 
 buildings in which the appellant's quarters were situated 
 was to be taken to be the dwelling-house in the said 
 proviso mentioned, then the said block was inhabited 
 by a person under whom the appellant served, viz., the 
 major. 
 
 Crump, Q.C. {H. Bargrave Beane with him), appeared 
 for the appellant. 
 
 Asquith for the respondent. 
 
xlix victoria. 387 
 
 Sedgwick v. Neville. 1885. 
 
 Sedgwick 
 THE facts of this case, stated by the Eevising Barrister ij-j,vtttE 
 for the borough of Litchfield, were substantially similar 
 to those in Atkmson v. Gollard. The voter was a 
 non-commissioned officer, whose vote the Revising 
 Barrister had allowed. 
 
 M. Napier for the appellant. First, sec. 3 of the 
 Representation of the People Act, 1884, does not apply 
 to soldiers at all. It would be contrary to public policy 
 that it should do so. By the Queen's regulations 
 soldiers are prohibited from takin^-^p^art in political 
 meetings and demonstrations. But if' sec. 3 should be 
 held to have conferred the franchise on soldiers, there 
 would be a strong inducement in future for them to 
 attend such meetings. The number of those enfran- 
 chised would be considerable, and they would all be 
 enfranchised in respect of Crown property. The con- 
 sequences, therefore, of so construing the section as to 
 include soldiers might be serious, and could hardly fail 
 to be detrimental to the public service. Moreover, as 
 this franchise, if conferred on soldiers, is conferred in 
 respect of Crown property, the rights of the Crown will 
 have been thereby affected. The Crown is not bound 
 by an Act of Parliament which would affect its rights 
 or prerogatives, unless expressly named. That the 
 Crown has given its assent to this Act of Parliament 
 is of course true, but it has done so on the assumption 
 that, not being expressly named, its rights are un- 
 affected. Consequently no argument adverse to the 
 Crown's rights can legitimately be drawn from the 
 Crown's assent. The terms of sec. 3 are, it is sub- 
 mitted, inapplicable to soldiers in quarters. Soldiers 
 
V. 
 
 Kbtillb. 
 
 388 MICHAELMAS SITTINGS. 
 
 1885. do not inhabit their quarters by virtue of their service, 
 Sedowiok ^^^ ^y *^® Crown's indulgence. A servant, living in a 
 detached house, occupies it as part of the price of his 
 service, and he has therefore rights in respect of it, 
 which are founded on contract. A soldier, on the other 
 hand, Jias no such rights in respect of his quarters. In 
 the common case of a gardener, living in a detached 
 cottage, the gardener could not be deprived of his 
 ■cottage 'without determining his employment; nor, it 
 ■is submitted, could his master enter the cottage as he 
 pleased, or at unreasonable times. No doubt a servant 
 living in a cottage might be subjected to special re^ 
 strictions, and if they were such as to interfere with his 
 •exclusive user, that, it is apprehended, would deprive 
 him of the franchise. If the cottage were in a park, 
 of which the gates were locked at night, that is a re- 
 striction which might have the effect of depriving him. 
 ■Still in each case it would be matter of arrangement 
 -between the master and the servant. If the arrange- 
 ■ments were such as to interfere with the exclusive user 
 of the cottage, the servant would lose his qualification 
 ■by assenting to such arrangements; 
 
 Rosher for the respondent. The rule for construing 
 statutes, which affect the Crown's interest, is thus 
 stated in Bacon's Abridgement, Tit. Prerogative (E) 5: 
 "Where a statute is general, and thereby any pre- 
 rogative, right, title, or interest is devested or taken 
 from the king, in such case the king shall not be 
 bound, unless the statute is made by express words to 
 extend to him." But upon what grounds can it be 
 contended that the enfranchisement of soldiers pre- 
 judicially affects any " prerogative, right, title, ot 
 interest " of the Crown The fact of a soldier 
 
XLIX VICTORIi^.. 389 
 
 exercising the franchise could not stirely do so. If 1885. 
 his services were required for military duty on the Sedgwick 
 
 V. 
 
 day of an election, that might, no doubt, affect his nevilm. 
 power of voting ; but it could not affect thfe Crown's 
 interest. The 10 & 11 Vict. c. 21, s. 2, shows clearly 
 that soldiers may have the franchise, for it provides 
 that soldiers stationed within two miles of a place of 
 election shall not be allowed out of barracks during the 
 election, except for the purpose of relieving guard or 
 of voting at such election. If it be a detriment to the 
 Crown that soldiers should have the franchise, how 
 comes it that, although no enactment in reference to 
 soldiers can be produced which in terms enables them, 
 to vote, we yet find them in possession of the franchise ? 
 Again, wherever a disability .has attached to Crown 
 servants, it has been by express enactment. The police 
 are still under such a disability. Revenue officers and 
 persons employed by the Post Office were so formerly, 
 but the statutes creating their disability have now been 
 repealed. Further,- the Representation of the Peoplfe 
 Act, 1884, does in terms extend to the Crown, which is 
 expressly named in sec. 9, subsecs. 4 and 9. The 
 latter subsection makes express provision to save the 
 franchise of a man who inhabits a dwelling-house, in 
 respect of which, by reason of the dweUing-house be- 
 longing to or being occupied on behalf of the Crown, no 
 one is rated. That, it is submitted, is a clear indication', 
 that the statute was intended to apply to servants of 
 the Crown. The instructions in the Registration Act, 
 1885, are a further indication of this same intention. 
 {See schedule 2 (instructions for counties). Part II., 
 pars. 23 and 24, schedule 3 (instructions for boroughs). 
 Part II., pars. 23 and 24.] 
 
 Next, prohibitions in the Queen's Regulations against 
 
390 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 Sedowick 
 
 V. 
 
 Neville. 
 
 BOXALL 
 V. 
 
 Bailet. 
 
 taking part in public demonstrations cannot affect a 
 soldier's right to the franchise. They have, in fact, no 
 bearing on the question. If they had. Post Office 
 servants would be equally disqualified, since they are 
 placed under restrictions of a similar description. 
 
 Lastly, the facts establish that the voter inhabited by 
 virtue of his service in the army, and the instructions 
 in the Registration Act, 1885, make it clear that the 
 quarters which he inhabited constituted a qualifying 
 " dwelling-house." 
 
 BoxALL V. Bailey. 
 
 THE facts of this case were also substantially similar 
 to Atkinson v. Collard. The appellant was an officer 
 living in barracks at Winchester, whose vote the 
 Revising Barrister had disallowed. 
 
 Sir John Gorst (Solicitor-General) appeared for the 
 appellant. 
 
 The Court called upon 
 
 Odgers for the respondent, who, in support of his 
 contention that part of a house could not constitute a 
 " dwelling-house " within sec. 3 of the Representation 
 of the People Act, 1884, urged that, on ordinary 
 principles of construction, the term " dwelling-house " 
 must have the same meaning throughout sec. 3, where- 
 ever it occurred, and that consequently the effect of 
 holding part of a house to be a •' dwelling-house '' 
 within the section would be to give a servant a vote 
 
XLIX VICTORIA, 
 
 891 
 
 for a room in his master's house, unless the master 
 also inhabited the same room ; that, in order to avoid 
 so great an absurdity, the term " dwelling-house " must 
 be construed throughout the section as referring only 
 to an entire dwelling-house. 
 
 Cur. adv. vult. 
 
 The judgment of the Court (a) was now (6) delivered by 
 
 Cave, J. The appellant in the case of Atkinson v. 
 Gollard is a sergeant in the army, and he claims the 
 vote as having inhabited a dwelling-house by virtue of 
 his service within the meaning of the 3rd section ot the 
 Representation of the People Act, 1884. 
 
 It was objected that this section does not apply to 
 service in the army, because the Crown is not bound by 
 a statute unless named in it. How the rights, preroga- 
 tives, or property of the Crown are affected by soldiers 
 having votes we cannot see ; but it is enough to say 
 that the Crown is named in the statute, as we shall 
 show presently. 
 
 Next it was said that it was contrary to public policy 
 that soldiers should have votes. No authority was cited 
 for this proposition. On the contrary, soldiers have 
 always, in respect of the franchise, been treated on the 
 same footing as civilians. By 8 Geo. 2, c. 30, which 
 provides for the removal of soldiers from the vicinity of 
 an election, it is enacted that nothing in the act con- 
 tained shall extend to any officer or soldier who shall 
 have a right to vote at any such election, but that every 
 such officer and soldier may freely, and without inter- 
 ruption, attend and give his vote at such election. A 
 similar provision is to be found in 10 Vict. c. 21. 
 
 1885. 
 
 Atkinson 
 
 V. 
 
 COLLARD. 
 
 LOWET 
 
 V. 
 
 COLLAED. 
 
 Sbdgwick 
 
 V. 
 
 Nkvij-lb. 
 
 BOXALL 
 V. 
 
 Bailet. 
 
 (a) Lord Coleridge, C.J., Grove and Cave, J.J. (J) Nov. 5. 
 
 VOL. I. GO 
 
392 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 Atkinson 
 
 V. 
 
 CojpLAED. 
 
 LOWBT 
 
 V. 
 COLLAED. 
 
 Sedgwick 
 
 T. 
 
 Neville. 
 
 BOXALL 
 V. 
 
 Bailey. 
 
 It is true that by 22 Geo. 3, c. 41, and 8 Geo. 4, 
 c. 53, s. 9, ofificers of excise and customs and persons 
 engaged in the Post Office were disqualified from voting ; 
 but these disqualifications were finally removed by 31 & 
 32 Vict. c. 73, which recites that it is inexpedient that 
 any person otherwise entitled to be registered as a voter 
 should be incapacitated to vote at the election of a 
 member or members to serve in Parliament by reason 
 of his being employed in the collection or management 
 of Her Majesty's revenues. 
 
 The question, moreover, is put beyond all doubt by 
 the 9th section of the Representation of the People Act, 
 1884, sub-s. 9, which provides that "where a man 
 inhabits a dwelling-house in respect of which no person 
 is rated, by reason of such dwelling-house belonging to 
 or being occupied on behalf of the Crown, or by reason 
 of any other ground of exemption, such person shall not 
 be disentitled to be registered as a voter, &c." Now a 
 dwelling-house can only be occupied on behalf of the 
 Crown by a servant of the Crown, or at any rate by 
 some one who is regarded as being in consimili casu 
 with a servant of the Crown, so that this provision is a 
 clear indication that servants of the Crown are intended 
 to be included within the Act. 
 
 The other objections made against the vote were of a 
 more special character. The word " inhabit " simply 
 means to dwell in, and there can be no doubt that the 
 appellant inhabits the two rooms in question. It admits 
 of as little doubt that they form a dwelling-house. By 
 section 5 of the Registration Act of 1878, the term 
 " dwelling-house " is to include any part of a house 
 where that part is separately occupied as a dwelling; 
 and it is also provided that " where an occupier is entitled 
 to the sole and exclusive use of any part of a house, that 
 
XLIX VICTORIA. 
 
 393 
 
 part of the house shall not be deemed to be occupied 
 otherwise than separately by reason only that the occu- 
 pier is entitled to the joint use of some other part." 
 Now the two rooms in question are either themselves a 
 dwelling-house or they are part of a dwelling-house, and 
 in the latter case, as they are separately occupied as a 
 dwelling, they form a dwelling-house within that section. 
 A servant does not the less inhabit a dwelling-house, 
 nor is it the less a dwelling-house because the master 
 makes and enforces regulations for the good government 
 of the servant and of his house ; nor does the fact that 
 the master retains himself or delegates to others the 
 power of entering a servant's house for the purpose of 
 maintaining order prevent the servant from having the 
 sole and exclusive use of the house. 
 
 The next objection is that the dwelling-house was 
 inhabited by a person under whom the appellant served. 
 Now it is obvious that this part of the section cannot 
 apply where the master and servant occupy separate 
 and distinct houses ; and, as where the servant inhabits 
 part of a house he must have the sole and exclusive use 
 of that part, this clause can only apply where the 
 servant inhabits part of a house, and the rnaster inhabits 
 the house of a part of which the servant has the sole 
 and exclusive use. Thus, where a butler has the sole 
 and exclusive use of a bedroom in his master's house, it 
 is clear that the dwelling-house is inhabited by the 
 person under whom the butler serves; and where a 
 gate-keeper has the sole and exclusive use of a cottage 
 at the gate of his master's park, it is equally clear that 
 the dwelling-house is not inhabited by the person under 
 whom he serves. 
 
 In the present case the appellant inhabits two rooms 
 in a block of buildings, and there are other rooms in the 
 
 1885. 
 
 AlKrNSON 
 
 V. 
 
 CoHAKb. 
 
 LOWBV 
 
 V. 
 COLLAED. 
 
 Sbdgwiok 
 
 V. 
 
 Neville. 
 
 BOXALL 
 V. 
 
 Bailey. 
 
 GG 2 
 
394 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 Atkinson 
 
 V. 
 
 OOLLAED, 
 
 LOWKT 
 
 T. 
 COLLAKD. 
 
 Sedgwick 
 
 V. 
 
 Neville. 
 
 BOXALL. 
 V. 
 
 Bailet. 
 
 same block inhabited by other non-commissioned officers, 
 some of them of superior rank to himself. Now it 
 appears impossible to contend that the appellant in- 
 habits the whole block as a dwelling-house ; and, if he 
 inhabits his own two rooms only, it must follow that 
 the other non-commissioned officers do the same, and 
 consequently that the officer of highest rank also only 
 inhabits his own rooms. If this is not so, either every 
 person in the block must inhabit the whole block, 
 which is absurd, or else, when the officer of highest 
 rank goes away, the next officer immediately and by 
 virtue of his superior rank at once begins to inhabit 
 the whole block, having previously inhabited only his 
 own two rooms. In truth, the senior non-commissioned 
 officer occupies his own two rooms and those only, and 
 cannot inhabit rooms which he does not in fact occupy 
 either by himself or his servants, although undoubtedly 
 the converse does not hold, and a man may occupy what 
 he does not inhabit. In our judgment there is no 
 dwelling-house here of which the appellant occupies 
 a part and the senior non-commissioned officer the 
 whole. 
 
 Moreover, we think that the appellant in this case 
 does not serve under the senior non-commissioned officer. 
 It is not necessary to decide whether a private soldier 
 serves under the captain of his troop or companj^ or a 
 captain under the colonel of bis regiment. A soldier 
 dbee not serve under every one of superior rank to 
 himself in the same regiment, and there are no facts 
 stated in the case which warrant the conclusion that 
 the appellant served under anybody who inhabited any 
 rooms in the same block of buildings. 
 
 These considerations dispose of most of the cases 
 relating to non-commissioned officers and married men. 
 
XLIX VICTOfilA. 
 
 395 
 
 In the case of Lowry v. Collard it was contended 
 that the appellant, in that case a captain, could not 
 have a vote hecause an officer of superior rank — a 
 major — had quarters in the same block of buildings. 
 This case, however, is not substantially different from 
 that of Atkinson v. Collard, and we think the same 
 considerations apply. The major did not in fact, or 
 constructively, inhabit the whole block, but only his 
 own quarters, and moreover is not a person under whom 
 Captain Lowry served in his office or employment. 
 
 Judgments accordingly. 
 
 1885. 
 
 Atkinson 
 
 V. 
 COLLABD. 
 LOWRT 
 
 V. 
 COLLAED. 
 
 Sedgwick 
 
 V. 
 
 Neville. 
 
 BOXALL 
 V. 
 
 Bailet. 
 
 Solicitors — For Appellants, Speechly, Mumford <fe 
 Landon ; Terrell & Atkinson; 
 Lambert, Fetch & Shakespear. 
 For Respondents, Wyatt, Hoskins <fe 
 Hooker ; H. Russell ; Bailey <fe 
 Whitt. 
 
S96 MICHAELMAS SITTINGS. 
 
 Ford, Appellant ; Barnes, Respondent. 
 Ford, Appellant ; Elmslby, Eespondent. 
 
 Ford v. Barnes. 
 
 1885. THIS was an appeal from the decision of the Revising 
 Oct. 28, 29. 1 
 Nov. 5. Barrister for the city of Exeter. 
 
 Although, in The respondent, whose name appeared on the list of 
 
 order to qualify r i ■ n n 
 
 under sec. 3 of parliamentary voters for the city of Exeter m respect 
 
 the Eepresen- . ,. , n- , / 1 -l i 
 
 tation of the of the occupation of , a dwelhng-house (described as 
 1884, a man is y^e BarracJcs, TopshaTn Road) was duly objected to 
 
 required him- i ,n n j. 
 
 sdf to inhabit, Dy tne appellant. 
 
 hisinhabitanoy r^ following were the facts of the case here ma- 
 
 may be con- o 
 
 struotive, but, <;erial : — The respondent was a battery sergeaut-maior 
 
 in order to ^ j a j 
 
 make out con- fjj t]je Royal Artillery, stationed at Topsham Barracks, 
 
 structive in- 
 habitancy, he Exeter. He was an unmarried man, but, being a stafif- 
 must show that 
 
 itwashisinten- sergeant, he had the right to the exclusive use and 
 after a tempo- occupation of one large room in the block of buildings 
 anY that he kiown as the staff-sergeants' quarters in Topsham 
 to'^r*um'"'at-Sa^''«cfe, and during the whole of the qualifying 
 any tame with- period he had (as the Revising Barrister found) himself 
 any legal obli- separately occupied the said room as a dwelling by 
 Theclaimant, virtue of his office as a sergeant-major in her Majesty's 
 
 a man in the 
 
 military eer- army. All the fumiture in his quarters belonged to 
 
 vice of the ^ l • ^ ^ • n 1 n • 
 
 Crown, quaii- the respondent, with the exception of the nre-irons, 
 
 fied in other 
 
 respects under sec. 3 of the Representation of the People Act, 1884, by inhabiting, so 
 as to constitute it a " dwelling-house," a room in barracks at Exeter, had during 
 twenty-one days of the qualifying period been absent on duty at Okehampton, and 
 cimld not during that period have returned to Exeter without leave. Held that, there 
 being during the twenty-one days no inhabitancy in fact of the room, it lay on 
 the claimant to show constructive inhabitancy of it, and that of this there was no 
 pioof, although the claimant retained his room at Exeter, and kept his fumiture in it, 
 and his wife and family resided there during his absence. 
 
XLIX VICTORIA. 
 
 397 
 
 bedstead, and table. The respondent was absent on 
 duty at OJcehampton for twenty-one days during the 
 qualifying year, and c ould not return without leave ; 
 but during his absence he retained his room and kept 
 his furniture in it, and no other person used or 
 occupied the said room. 
 
 The appellant contended (inter alia) that the 
 respondent did not himself occupy a dwelling-house 
 during the whole of the qualifying period. 
 
 The Revising Barrister decided that the respondent 
 was entitled to have his name retained on the list of 
 voters as an inhabitant occupier of a dwelling-house by 
 virtue of sec. 3 of the Representation of the People 
 Act, 1884 ; and he accordingly retained the name of 
 the respondent on the list. 
 
 1885. 
 
 FOBD 
 
 V. 
 
 Barnes. 
 Ford 
 
 V. 
 
 Elmsley. 
 
 Ford v. Elmsley. 
 
 fPHE facts of this case differed from the last only in 
 the following particulars : — 
 
 The respondent was a married man, and, as such, 
 resided in the married quarters with his wife and 
 family. 
 
 While the respondent was absent on duty at OJce- 
 hampton his wife and family had the right to, and 
 did, remain in and occupy his quarters during his 
 absence. 
 
 In this case also the Revising Barrister retained the 
 name of the respondent on the list. 
 
 Bom,pas, Q.C. {Bernard Coleridge with him) for 
 the appellant. The Revising Barrister was wrong in 
 
3S8 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 FOBD 
 T. 
 
 Babnks. 
 
 FOKD 
 V. 
 
 . Elmblst. 
 
 allowing the respondents' votes, since there was a clear 
 break of residence at their quarters in Exeter. For 
 twenty-one days of the qualifying year they were 
 absent on duty at Okehampton, and could not during 
 that period return to Exeter, without leave being 
 granted to them. Ford v. Hart (a) shows that where 
 the power to return is taken away, there can be no case 
 of constructive residence. 
 
 Again, the words of the qualifying section are 
 " where a man hvmself inhabits." That shows that no 
 distinction can be drawn in favour of the respondent 
 Elmsley from the circumstance that, "while he was 
 himself at Okehampton, his wife and children still 
 remained in his quarters at Exeter. 
 
 [He referred also to Durant v. Carter (b) and Foi-d 
 V. Pye (c).] 
 
 Sir John Oorst (Solicitor-General) and Foote, for the 
 respondents. The question here is not one of residence, 
 but inhabitancy. Inhabitancy is a question of fact ; 
 and upon the facts the Revising Barrister has found 
 that the respondents were inhabitant occupiers. In 
 Reg V. Mayor of Exeter, Bipstale's Case (d), Blackburn, 
 J., said : " In all these cases it is a question of degree, 
 more or less. There is no precise line to be drawn. 
 A person may inhabit a place without sleeping there 
 or he may sleep there without inhabiting it." A tem- 
 porary absence will not prevent a person from being an 
 inhabitant — Rex v. Mitchell (e). In the cases cited on 
 the other side, the question which arose was one of 
 residence ; and in Ford v. Hart (a), Keating, J. 
 
 (a) 2 Sopw. <fe CoU. 167 J S. a 
 L. R. 9 a P. 273. 
 
 (5) 2 Hop%i}. & CoU. 142 ; S. C. 
 L. R. 9 C. P. 261. 
 
 (c) 2 ffopw. <fc Colt. 157 ; S. C. 
 L. R. 9 a P.. 269. 
 
 (d) L. R. 4 Q. B. 114. 
 
 (e) 10 East. 511. 
 
XLIX VICTOEIA. 
 
 399 
 
 expressly distinguished Rex v. Mitchell (a) as being a 
 case of inhabitancy. It is true that in Rex v. Mitchell (a) 
 the question was not as to the inhabitancy of a 
 house, but as to inhabitancy within a ward of the City 
 of Norwich. But that, it is submitted, can make no 
 real distinction. The true rule in either case is that 
 a mere temporary absence does not disqualify. In 
 Powell V. Quest (b), Erie, C.J., said that he entirely 
 subscribed to what was laid down in Elliott on Regis- 
 tration — viz. : that " in order to constitute residence, a 
 party must possess at the least a sleeping apartment ; 
 but that an uninterrupted abiding at such dwelling is 
 not requisite." The argument for the respondents may 
 be illustrated by the position of a sheriff. A sheriff' is 
 under the obligation of attending on the judges at the 
 assizes. During their continuance, therefore, he is pre- 
 cluded from going home without leave — necessarily so, 
 if he could not be back again on each day in time 
 to perform his official duties. But could anyone contend 
 that during the assizes a sheriff ceases to be the inhabit- 
 ant occupier of his dwelling-house ? It is true that a 
 sheriff might go home without leave, at the risk of being 
 fined if not in attendance when required ; but a soldier 
 might also go home subject to the risk of being punished 
 for his breach of duty in absenting himself. The case 
 of Powell V. Quest (6) is, it is submitted, distinguishable, 
 since there the claimant was absolutely deprived of the 
 power of going home, and it was moreover his own 
 voluntary act which subjected him to imprisonment. 
 
 1885. 
 
 Ford 
 
 V. 
 
 Babnes. 
 Ford 
 
 V. 
 
 Elmslst. 
 
 Bompas, Q.C., in reply. No sound distinction can 
 be drawn for the purpose of the Franchise Acts between 
 
 (a) 10 Salt, 511. 
 
 (6) Hopw. <fc Ph. 155 ; 5^. C. 18 
 C. B N. S. 80. 
 
400 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 FOKD 
 V. 
 
 Babneb. 
 
 ■ POBD 
 V. 
 
 Elmbley. 
 
 residence and inhabitancy. Both were set up in Durant 
 V. Garter (a), and Keating, J., dealt with them as 
 involving the same considerations. Rex v. Mitchell (6) 
 is, it is submitted, distinguishable. There the question, 
 which arose upon the construction of the Borough 
 Charter of Norwich, was not what facts would con- 
 stitute the inhabitant occupation of a particular dwelling 
 house ; but whether certain militiamen who had houses 
 in Norwich — where their wives and families resided — 
 might, although absent for a time on service, be deemed 
 inhabitants of i\^or'u;icA. within the terms of the Charter. 
 In Powell V. Quest (c), Rex v. Mitchell (b) is distin- 
 guished, and a principle is laid down which Ford v. 
 Hart (d) has extended to soldiers — viz., that where a 
 person has, by his own voluntary act, debarred himself 
 of the liberty of returning to his dwelling when he 
 pleases, whether by entering the service of the Queen 
 as in Ford v. Hart (d), or by a criminal act as in 
 Powell V. Quest (c), he is equally precluded in either 
 case from acquiring a constructive residence. 
 
 Gwr. adv. vult. 
 
 The judgment of the Court (e) was now (/) delivered by 
 
 Cave, J. In this case {Ford v. Barnes) the respon- 
 dent, who claims to vote in respect of his inhabitancy of 
 a dwelling-house in the barracks at Uxeter, was absent 
 during three weeks of the qualifying period, at Ohshamip- 
 ton. During this period he could not return to Exeter 
 without leave. The respondent did not therefore in fact 
 inhabit at ^xeier during the whole of the 365 days making 
 
 (a) 2 ffopv). & Colt. 142 ; S. 0. 
 L.B.9 0. P. 261. 
 
 (6) 10 East, 5 1. 
 
 {c) Eopw. <t- Ph. 156; 5. C. 18 
 a B. N. S. 80, 81. 
 
 (d) 2 Sopw. & Colt. 167 ; S. 0. 
 L. R. 9 C. P. 263. 
 
 (e) Lord Coleridge, C. J., Grove, 
 J., and Cave, J. 
 
 (/) Nov. 5. 
 
XLIX VIOTOEIA. 
 
 401 
 
 up the (Qualifying period. We think, however, that actual 
 inhabitancy during every one of the days is not neces- 
 sary, and that it is sufficient if the claimant can make 
 out a constructive inhabitancy. But in order to make 
 out a constructive inhabitancy there must be an intention 
 of returning after a temporary absence, and a power of 
 returning at any time without breach of any legal 
 obligation. The case of a sheriff was put in-the course 
 of the Eirgument. A sheriff always intends to return 
 Tvhen his duties are a,t an end, and has always power to 
 return without breach of any legal obligation. If his 
 home is sufficiently near to the assize town he does, in 
 fact, return to it every evening. If it is too far he does 
 not return to it — not because he breaks any legal 
 obligation by going to his home, but because he 
 cannot get back in time for his official duties. His 
 difficulty is a physical and not a legal one, and he 
 cannot go home, every evening for the same reason 
 that a man who is travelling on the Continent can- 
 not do so. In this case, unfortunately, the facts are 
 very briefly stated, and we do not know whether, when 
 the claimant was sent to Okehampton, it was the inten- 
 tion of those who sent him that he should return to 
 Exeter; or whether leave to return during the twenty- 
 one days could have been procured, and, if not, why- 
 it would have been refused. If it could have been 
 shown that it was always the intention of the authori- 
 ties that he should stay a.t Okehampton three weeks 
 only, and should then return to Exeter, and that leave 
 to return to Exeter every night would have been granted 
 as a matter of course, or, if refused, only refused on 
 account of difficulty of communication, and not because 
 his presence vras required at Okehampton in the night- 
 time, we should have thought that there were strong 
 
 1885. 
 
 FOBD 
 V. 
 
 Baengs. 
 
 FOKD 
 T. 
 
 Elmslet. 
 
402 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 POBD 
 V. 
 
 Babnes. 
 
 FOBD 
 V. 
 
 Blmslet. 
 
 grounds for contending that there was a constructive 
 inhabitancy. As, however, there was no inhabitancy in 
 fact during the three weeks in question, it lay on 
 the claimant to prove facts establishing a constructive 
 inhabitancy, and this, in our judgment, he has failed 
 to do. 
 
 We were pressed on the one side with the case 
 of Ford V. Hart (a), and on the other with that of 
 Rex V. Mitchell (h). In our judgment, this case falls 
 within the principle laid down in Ford v. Hart (a). 
 If the two cases are inconsistent, we think the later case 
 should be followed. 
 
 [His Lordship added that the above decision also 
 applied to Ford v. Mmsley.] 
 
 Decision reversed. 
 
 Solicitors — For Appellant, J. E. Fox da Co., 
 
 for H. <fc B. J. Ford, Bxeter. 
 For Respondents, S. Ha/milton, 
 
 for J. W. Friend, Exeter. 
 
 (a) 2 ffopw. & Colt. 167 ; S. C. (6) 10 East. 511. 
 
 L. B. 9 C. P. 268. 
 
XLIX VICTORIA.. 408 
 
 Adams, Appellant ; Ford, "Respondent. 
 
 AT a Court held for the revision of the lists of 1885. 
 Oot. 31. 
 
 voters for the city o^ Exeter the respondent duly objected — zr — 
 
 -L^DC iipp61" 
 
 to the appellant's name being retained on the occupier's Ian* was em- 
 
 . ployed, as the 
 
 ust for the parish of St, Thomas the Apostle as a industrial 
 
 T trainer of a 
 
 parliamentary voter, on the ground that the appellant workhouse, by 
 had not occupied as owner or tenant the property the poor,^ who 
 described in the said list for twelve months to the a^plrf of Ms 
 15th July, 1885. "f'^fy *« «='- 
 
 •' ' elusive use 
 
 The following facts were proved : — *°<i ocoupa- 
 
 ° ^ tion of a sit- 
 
 The name of the appellant appeared on the said list ting-room and 
 
 bedroom in 
 
 in the following form : — the main 
 
 building of the 
 
 Adam^, John 
 
 Union Workhouse, 
 Okehampton. 
 
 I workhouse. 
 
 T» ,!• T. Okehampton The master of 
 
 Dwellmg-house. ^^J the work- 
 
 I house, also in 
 
 : the employ- 
 
 The appellant is an industrial trainer, appointed, ™e"' pf the 
 
 '^'^ > r-i ' guardians, 
 
 paid, and employed by the guardians of the poor for the resided in 
 
 parish of St. Thomas the Apostle. the work- 
 
 house ; the 
 As part of his salary the appellant is allowed and guardians re- 
 
 . . . „ serving 
 
 permitted to have the exclusive use and occupation of another room, 
 two rooms, namely, a sitting-room and bed-room, uggj ^s a*^ 
 
 board-room. 
 The appellant eould not stay out of his rooms after 9 p.m. wfthout the permission of 
 the master, who after that hour kept the keys of the workhouse, but the master had 
 no power to suspend or dismiss the appellant, but could only report him to the 
 guardians. Held first, that the appellant inhabited a " dwelling-house," by virtue of 
 his employment, within sec. 3 of the Kepresentation of the People Act, 1884. 
 
 Secondly, that the workhouse was not inhabited by any person under whom the 
 appellant served, since neither the guardians nor the master could be regarded as 
 inhabiting the whole workhouse. 
 
 Tliirdly, that the appellant did not serve under the master. 
 
404 
 
 1885, 
 
 MICHAELMAS SITTINGS. 
 
 situate in the main building of the workhouse ; and 
 Adams during the whole of the qualifying period he separately 
 FoBD. occupied the said rooms as a dwelling by virtue of 
 his employment as industrial trainer at the said work- 
 house. 
 
 The guardians reserve another room in the main 
 building of the workhouse, which they use as a board- 
 room. 
 
 The master of the workhouse (also appointed, paid, 
 and employed by the said guardians of the poor) 
 resided in other rooms, situate in another part of the 
 said workhouse building. 
 
 By the Poor-Law Orders, it is the duty of the master 
 of the workhouse to receive from the porter the keys of 
 the workhouse at nine o'clock every night, and to 
 deliver them to him again at six o'clock every morning, 
 or at such hours as shall from time to time be fixed by 
 the guardians. 
 
 The appellant could not stay out of his rooms after 
 the hour of nine o'clock in the evening without the 
 permission of the master of the workhouse. If he 
 did stay out without such permission, the master would 
 have no power to suspend or dismiss him, but would 
 report the matter to the guardians, who would deal 
 with it either by reprimand or dismissal. Save in this 
 respect, the appellant was not subject to the orders or 
 control of the master of the workhouse. 
 
 It was contended by the objeptor that the appellant 
 was a lodger in the rooms allotted to him by reason of 
 the master of the workhouse (his official superior) 
 residing in another part of the same building, and 
 controlling the appellant in his right of ingress and 
 egress to and from the' said premises. 
 It was contended on behalf of the appellant that he. 
 
XLIX VICTORIA. 405 
 
 having inhabited the rooms in question, and having 1885. 
 had the separate use and occupation of the same for Adams 
 the necessary period by virtue of his office and employ- Fom. 
 ment, and his employers (the guardians of the poor) not 
 having inhabited the said rooms or the said main 
 building of the workhouse, was by virtue of sec. 3 of the 
 Representation of the People Act, 1884, an inhabitant 
 occupier of a dwelling-house as tenant. 
 
 The Revising Barrister decided that the residence of 
 the master of the workhouse (the official superior of the 
 appellant) was, in law, the residence of his employers 
 (the guardians of the poor), and the fact that the 
 appellant had no right to stay out of his rooms after 
 nine o'clock at night without the permission of the 
 master, and was liable to be reported if he did so, was 
 an exercise of control sufficieat in law to prevent his 
 being an occupying tenant of a dwelling-house within 
 the meaning of the Representation of the People 
 Act, 1884. 
 
 He accordingly expunged the name of the appellant 
 from the occupiers' list of parliamentary voters for the 
 said city. 
 
 Foote for the appellant. The Revising Barrister was 
 wrong in not allowing the appellant's vote. The appel- 
 lant had clearly such an exclusive use of his rooms as 
 to constitute them a " dwelUng-house." There is no 
 finding that anyone but the appellant could enter them, 
 and as to the restriction on his being out at night with- 
 out permission, that is merely a matter of disciplinary 
 regulation. The only other question that can be raised 
 is whether the dwelling-house was inhabited by anyone 
 under whom the appellant served. Clearly, he did not 
 serve under the master of the workhouse. The master 
 
406 MICHAELMAS SITTINGS. 
 
 1885. of tJie workhouse did not appoint or pay, nor could he 
 Adams suspend or dismiss, but only report the appellant. 
 FoBD. Again, the master of the workhouse did not inhabit 
 the whole building, but merely his own rooms. The 
 guardians, on the other hand, did not inhabit at all. 
 It is true they reserved a board-room for the transaction 
 of business, but they cannot on that account be said to 
 have inhabited the workhouse. 
 
 B. Coleridge for the respondent. First, the appellant 
 did not inhabit a " dwelling-house " within sec. 3 of the 
 Eepresentation of the People Act, 1884. It may well 
 be that rooms in barracks would constitute separate 
 dwelling-houses, while a room in a workhouse would 
 not, the building being entire and not divided like 
 barracks into separate rooms. If, however, the Court 
 think that the appellant did inhabit a " dwelling-house,^' 
 it is submitted that he served under the master of the 
 workhouse. The master of the workhouse was his official 
 superior, and, having rooms in the same building and 
 the custody of the keys at night, must be taken to have 
 inhabited the whole workhouse. In any view the ap- 
 pellant served under the guardians. The fact of their 
 reserving a room in the workhouse, which they used for 
 business purposes is, in conjunction with the other facts, 
 sufficient to warrant the inference that they "inhabited" 
 the workhouse within the Act of Parliament. 
 
 Foote was not heard in reply. 
 
 Lord Coleridge, C.J. In this case I have been 
 unable to see any doubt that the Revising Barrister 
 was wrong. The appellant, who is the industrial trainer 
 in a workhouse at Exeter, claims to be entitled to a vote 
 
XLIX VICTORIA. 407 
 
 under the 8rd section of the Eepresentation of the ^^^^- 
 People Act, 1884. It is already sufficiently established Adams 
 that the term " dwelling-house '' is not confined to an Pobd. 
 absolutely separate dwelling-house, or to part of a 
 dwelling-house structurally severed, but that it is satis- 
 fied where " by virtue of any office, service, or employ- 
 ment," a man has had the sole and exclusive use of part 
 of a "dwelling-house." It is therefore clear in the 
 present case that the appellant has inhabited a dwel- 
 ling-house, and as he has inhabited it by virtue of his 
 office or employment, it must follow that he is entitled 
 to the franchise, unless the dwelling-house was inhabited 
 by some person under whom he served. It is argued 
 that the appellant served under the master of the work- 
 house, who also lived in the workhouse, and of whom it 
 has been said by the Revising Barrister that he was the 
 appellant's official superior. Now, in a certain very 
 limited sense the master was the appellant's official 
 superior, since if the appellant was out after 9 p.m., 
 without the permission of the master, it was the 
 master's duty to report the matter to the guar- 
 dians. But the master had no power to suspend or 
 dismiss the appellant ; he could only report him to the 
 guardians, the common superiors of both. I think, 
 therefore, that upon these facts, it would be straining 
 the language of the section to hold that the appellant 
 served under the master, and I further think that 
 the master did not inhabit the whole of the work- 
 house. 
 
 Then it was said that the workhouse was occupied by 
 the guardians. That the guardians did occasionally 
 occupy for a few hours so much of the workhouse as 
 was necessary for a board-room is true ; but, on the 
 other hand, it is perfectly plain that they did not 
 
V, 
 
 Ford. 
 
 408 MICHAELMA.S SITTINGS. 
 
 ■^ °"' inhabit the workhouse so as to exclude the appellant 
 Adams from his right to the franchise. 
 
 Grove and Cave, JJ., concurred. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, S. D. Hainilton, for 
 
 J. W. Friend, Exeter. 
 For Respondent, /. E. Fox & Co., for 
 H. & B. J. Ford, 
 Exeter. 
 
XLIX YICTOKIA. 409 
 
 Stribling, Appellant ; Halse, Respondent. 
 
 AT a Court held by the Revising Barrister appointed 1885. 
 Nov 2 
 
 to revise the lists of voters for the borough of St. 
 
 Pancras the appellant duly claimed to be inserted in ant, by virtue 
 the list of occupation voters for the south division of the ^^^ iZ^^"^' 
 said borough, and the following facts were established ^*^'j^^' ^°^®-^y 
 by the evidence. qualifying 
 
 period, a fur- 
 
 The appellant, during the period of twelve months and nished bed- 
 
 room in a 
 
 upwards, previously to the 15th July, 1885, had been dwelling-house 
 
 1 . . /. T belonging to 
 
 employed as a shop assistant, and in virtue oi such his employer. 
 employment had during the same period inhabited solely assistants 
 one bedroom in a dwelling-house belonging to his em- similarly other 
 ployers, situated within the said south division of the J'^'i'^''""'^- ""<! 
 
 ^ "^ ' there was a 
 
 borough, common 
 
 dining-room. 
 
 The house had not during any part of such period The employer 
 
 did not reside, 
 
 been inhabited by any person under whom the appel- but exercised 
 
 , . control over 
 
 lant served in his said employment, unless, upon the the house by a 
 facts herein appearing, the Court should hold that it taker, and per- 
 had been in law inhabited by his employers. requUite dV 
 
 The appellant's bedroom was not structurally severed ^^l^^ hed-^'^^ 
 from the rest of the house, nor separately rated. The 1°°"-^ ^""i 
 
 ■^ ■' housegenerally 
 
 appellant had no key of the room door. by a resident 
 
 servant not 
 
 The house contained other bedrooms similarly inha- under the 
 
 orders of the 
 inmates. 
 Held that, notwithstanding the joint user of the dining-room, the bedroom was 
 occupied separately as a dwelling so as to constitute it a " dwellinjf-house" within 
 sec. 3 of the Representation of the People Act, 1884, and, therefore, that it conferred 
 the franchise on the shop assistant. 
 
 EH2 
 
410 
 
 MICHAELMAS SITTINGS. 
 
 1885. bited by other persons in the same employment as the 
 
 Stmblino appellant, who, with the appellant, are hereinafter 
 
 Halse. referred to as " the inmates." It also contained a sitting 
 
 or dining room, in which the inmates took their meals 
 
 in common, such meals being provided for them by their 
 
 employers. 
 
 The employers had exercised throughout the said 
 period general control over the whole of the house, 
 such control being enforced through a resident care- 
 taker. 
 
 The facts of this paragraph are stated by way of 
 illustrating the duties performed by the said caretaker. 
 At a certain hour every night he locked the street door, 
 by which alone ingress and egress to and from the 
 house were obtained, and took possession of the key. 
 Before locking the door he required all visitors to leave 
 the house. After locking the door he did not, during 
 the remainder of the night, except under special circum- 
 stances, open it, or suffer it to be opened, to allow any 
 of the inmates to come in or go out. Shortly after 
 locking the door he turned off the gas by which all the 
 rooms throughout the house were lighted, and saw that 
 no lamp or other light was thereafter kept burning in 
 any of the rooms. 
 
 The employers also performed, by a resident servant, 
 who was not under the orders of the inmates, the 
 domestic service requisite for the bedrooms of the 
 inmates, and for the house generally. 
 
 Subject to the question whether the bedroom so 
 inhabited by the appellant was or was not a dwelling- 
 house for the purposes gf the Kepresentation of the 
 People Acts, 1867 and 1884, he was in all respects 
 qualified to be inserted in the said list. 
 
 Twelve other persons, whose names were set out in a 
 
XLIX VICTORIA. 411 
 
 schedule, claimed to be inserted in the said list under ^^^^- 
 similar circumstances. Stribling 
 
 It was contended before the Revising Barrister, on Halsb. 
 behalf of the appellant and the said twelve other 
 persons, that the several bedrooms inhabited by them 
 respectively as aforesaid were dwelling-houses for the 
 purposes of sect. 3 of the Representation of the People 
 Act, 1884, and that each of them (the appellant and 
 such twelve other persons), was under that section en- 
 titled to be placed on the list as an inhabitant occupier 
 of a dwelling-house as tenant. 
 
 The Revising Barrister decided that, by reason of 
 the control exercised and service performed by the 
 employers, as above stated, the bedrooms inhabited by 
 the appellant and by the twelve other persons were not 
 separately occupied as dwellings within the meaning of 
 the Parliamentary and Municipal Registration Act 
 (41 & 42 Vict. c. 26), s. 5, and therefore were not dwell- 
 ing-houses for the purposes of the Representation of 
 the People Acts, 1867 and 1884, and he disallowed the 
 claims accordingly. 
 
 If the Court should be of opinion that the Revising 
 Barrister's decision was wrong, the register was to be 
 amended by inserting the name of the appellant and 
 the twelve other persons in the said list. 
 
 Beddall for the appellant. The decision of the 
 Revising Barrister was wrong. The facts stated show 
 that the appellant inhabited the room where he slept. 
 
 [Cave, J. The question is whether he inhabited a 
 " dwelling-house."] 
 
 It is submitted that he did. The instructions in the 
 
V. 
 
 Ealsb. 
 
 412 MICHAELMAS SITTINGS. 
 
 1885. schedules to the Eegistration Act, 1885, relative to the 
 SiEiBiiNa service franchise, distinctly state that a room may for 
 the purpose of that franchise constitute a dwelling- 
 house. The words of the instructions are "the 
 dwelling-house in the second column may be " " part 
 of a dwelling-house separately occupied as a dwelling,' 
 and then there is put, as an illustration, a " caretaker's 
 rooms in an office." The appellant's occupation of his 
 bedroom was clearly a separate occupation. He occu- 
 pied it as a dwelling by sleeping in it, and it is not 
 suggested that anyone else lived there. The principle 
 of Bradley v. Baylis (a) is inapplicable. It applies 
 only to lodgers. The appellant was not a lodger, and 
 it is submitted that within the enactments he inhabited 
 a dwelling-house. 
 
 The Court called upon 
 
 , R. M. Bray for the respondent. The Court will not 
 upon a question of fact review the Revising Barrister's 
 decision. Here his decision is express, that the appellant 
 did not occupy his bedroom separately as a dwelling. 
 
 [Lord Coleridge, C.J. No doubt the Revising 
 Barrister has so decided, but he submits his decision 
 for the consideration of the Court. Do you say that 
 anyone else occupied the appellant's bedroom ?] 
 
 Not in the sense of sleeping there. The mere fact 
 of sleeping in a room, even though no one else uses it, 
 is not, it is submitted, sufficient to constitute the 
 separate occupation of it as a dwelling. In the first 
 
 , [a) Ante, p. 163 ; S. V. L. R., 8 Q. B. D. 195. 
 
XLIX VICTORIA. 413 
 
 place, the room was under the control of the appellant's 1885. 
 employer. As to that, the case is not like the case put stbibling 
 in the schedules to the Registration Act, 1885, of a h^se. 
 coachman living over a stable. The coachman would 
 have a right by contract to occupy the room over the 
 stable so long as he remained in the employment. The 
 master could not turn him out while the employment 
 lasted — at all events, not without a breach of contract. 
 The case of the appellant is, it is submitted, different. 
 He has no contract right to the particular bedroom, 
 where he sleeps. He is not, as the Act of 1878, sec. 5, 
 requires he should be, " entitled to the sole and ex- 
 clusive use " of it. The definition of a " dwelling-house " 
 in the Act of 1878 is not inconsistent with the subse- 
 quent enactments. The Act of 1884 does not define a 
 "dwelling-house," but sec. 11 adopts the definition 
 already in existence. The instructions in the Registra- 
 tion Act, 1885, say that " dwelliug-house . . . may 
 be . . . part of a dwelling-house separately occu- 
 pied as a dwelling," not that any part separately occu- 
 pied is necessarily a dwelling-house. If the latter 
 proposition were law, every bedroom in an hotel occupied 
 by a guest would be within it, and would constitute a 
 " dwelling-house." To constitute the bedroom a 
 dwelling-house, the appellant must have occupied it 
 as Ms dwelling. That, it is submitted, he did not do 
 here. No doubt he occupied it for the purpose of 
 dwelling in it in the sense that he slept there ; but a 
 man does not dwell, or live, entirely in his sleeping- 
 room. The sleeping-room, it is submitted, both in 
 reason and good sense, forms only a part of the dwelling. 
 The point was adverted to by the present Master of the 
 Rolls (then Brett, L.J.) in Bradley v. Baylis (a). He said : 
 (a) Ante, p. 230; S. C, L. R. 8 Q. B. D. 233, 234. 
 
Halse. 
 
 4li MICHAELMAS SITTINGS. 
 
 1885. " You do not dwell in your bedroom ; you do not dwell 
 "T in your sitting-room ; you dwell in the two things 
 
 ^- jointly ; but where those two things are separated by 
 something which does not belong to you, I doubt 
 whether you can be said to dwell in either of them." 
 That language of the Master of the Rolls is distinctly 
 applicable to the present case. 
 
 Lastly, although the master did not inhabit the 
 house in person, he did, in a sense, inhabit it by his 
 caretaker. 
 
 Lord Coleridge, C.J. I am of opinion that in this 
 case the Revising Barrister was wrong, and that the appel- 
 lant and the other persons named in the schedule are 
 entitled to the franchise. The question arises under 
 sec. 3 of the Representation of the People Act, 1884, 
 read in conjunction with and expounded by the forms 
 and instructions contained in the Schedule to the 
 Registration Act, 1885. Read by the light of these 
 instructions, the construction of sec. 3 becomes plain. 
 That section in substance enacts that where a man 
 inhabits by virtue of service a " dwelling-house," which 
 includes a room separately occupied as a dwelling, he 
 shall be deemed " to be an inhabitant occupier of such 
 dwelling-house as a tenant." The section contains 
 another term, however — viz., that " the dwelling-house 
 is not inhabited by any person under whom such man 
 serves in such office, service, or employment." In con- 
 struing that clause I confess that the word '' dwelling- 
 house" must be held to mean something different 
 from what it means in the previous part of the section, 
 otherwise the section would contemplate the absurdity 
 of the master and the servant living in the same room. 
 The clause must therefore, I think, mean that the 
 
XLIX VICTOBIA. 415 
 
 whole dwelling-house (of which the room forms part) 1885. 
 " is not inhabited by any person under whom such man siBisHNa 
 serves." Then are these conditions of the statute hal'sb. 
 fulfilled in the present case ? The case finds that 
 the appellant and the twelve other shop assistants have 
 each a separate room in a house, which is separate from 
 the house of business and under the care of a caretaker. 
 In the house is a common room in which the inmates 
 take their meals ; but to each assistant a separate bed- 
 room is allotted, which, so long as he remains in that 
 employment, he occupies separately. The only question 
 therefore is whether the house, consisting of these sepa- 
 rate bedrooms and common dining-room, can be said to 
 be inhabited by the employer. It is quite plain that it 
 cannot. The employer never, in fact, goes to the house, 
 and can in no sense be said to inhabit it. Before the 
 passing ol the Representation of the People Act, 1884, 
 the assistants would not have been entitled to the fran- 
 chise because their occupation would have been that of 
 the employer, and they would not have occupied either 
 as owners or tenants. But sec. 3 of the recent Act has 
 in plain terms given them the franchise ; and, were it 
 not for the doubt which has been expressed by the 
 present Master of the Rolls, I should have thought the 
 case was perfectly clear. Any difficulty however, caused 
 by that doubt, is now removed. Certainly there is no 
 binding authority, prior to the Representation of the 
 People Act, 1884, to interfere with our present decision ; 
 and, indeed, I doubt extremely whether any authority 
 prior to that Act could have such an effect, since the 
 construction of the section must depend on the Act 
 itself, read by the light of the instructions in the subse- 
 quent Registration Act. 
 
416 MICHAELMAS SITTINGS. 
 
 1885. I am of opinion, on these grounds, that our judgmefit 
 
 SiBiBLiMo should be for the appellant. 
 
 V, 
 
 Halse. 
 
 Grove, J. I have come to the same conclusion. 
 Upon one point raised on behalf of the respondent I 
 have entertained some doubt — viz., whether a man who 
 has the exclusive use of a bedroom and the joint use of 
 a sitting-room can be said to dwell in the bedroom. 
 The present Master of the KoUs expressed a similar 
 doubt before the recent legislation. Looking to the 
 instructions in the Registration Act, 1885, it would 
 certainly seem that a man may occupy a room as a 
 dwelling, though he only occupies it during a portion of 
 the twenty-four hours. An instance there given is that 
 of a butler having a room over a laundry. It is obvious 
 that, consistently with his duty to his employer, the 
 butler could not remain in the room for more than 
 a portion of the twenty-four hours. That is, to some 
 extent, an answer to my doubt ; and therefore I concur 
 •with the other members of the Court in giving judgment 
 for the appellant. 
 
 Cave, J. The first question is, does the appellant 
 by virtue of his service inhabit a dwelling-house ? By 
 virtue of his service he inhabits a room, and a room 
 separately occupied as a dwelling is within this 
 enactment a " dwelling-house." The room is occupied 
 or, in other words, used, by the appellant separately. 
 The appellant uses it, and no one else does. He uses it 
 for the purpose of sleeping there, which is one of the 
 purposes of dwelling. The room is not occupied for any 
 purpose other than that of dwelling in it. Now, where 
 a man " is entitled to the sole and exclusive use of any 
 part of a house, that part " is not to " be deemed to be 
 
XLIX VICTORIA. 417 
 
 occupied otherwise than separately by reason only that 1885. 
 the occupier is entitled to the joint use of some other Steibling 
 part." Here the appellant had the sole and exclusive halsk 
 use of the bedroom, and he is not therefore to be deemed 
 to have occupied it otherwise than separately, because 
 he had the joint use of another room, w^here he took 
 his meals. The appellant's case is clearly brought 
 within the first branch of sect. 3. Then, is there any- 
 thing in the other part of the section to take away his 
 franchise? Is there an inhabitancy by a person. under - 
 whom the appellant serves ? As regards the employer 
 himself, he never goes to the house, and clearly cannot 
 be said to inhabit it. The caretaker, no doubt, does 
 inhabit it ; but his inhabitancy is not that of a person 
 xmder whom the appellant serves. 
 
 I am, therefore, of opinion that the decision of the 
 Eevising Barrister was in this case wrong, and that it 
 should be reversed. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, Lumley & Lwrnley. 
 
 For Eespondent, Hal&e, Trustram & 
 
 Go. 
 
418 
 
 MICHAELMAS SITT 
 
 ]; ( 
 
 Watson, Appellant ; Black, Respondent. 
 
 Oct. 31. A ''^ * Court held by one of the Revising Barristers ap- 
 
 ^'^' ^' pointed to revise the list of voters for the county 
 
 Shareholders ^f Middlesex, objection was duly made to the name of the 
 
 in an unmcor- ■' " 
 
 porated com- appellant being retained on the list of voters for the 
 
 pany may by 
 
 arrangement parish of St. Bartholomew by the Exchange, in the 
 
 among them- t • • 
 
 selves divest Homsey division of the said county. 
 
 any equitable The name stood ou the copy of the register relating to 
 
 which\]^y*" t^® ^^^^ parish, as follows : — 
 have bought 
 for the pur- 
 poses of their 
 
 undertaking, Watson, Charles 
 while retain- WiUiam 
 
 ing an interest 
 
 in the profits. 
 Where, there- 
 fore, an asso- 
 ciation of 
 persons had 
 by arrange- 
 ment among 
 themselves 
 bought land 
 tor the pur- 
 poses of an 
 undertaking, 
 
 2, Crown Court, 
 Threadneedie Street. 
 
 Share in free- 
 hold tenements. 
 
 Stock 
 Exchange. 
 
 The following facts were admitted, or established by 
 the evidence : — 
 
 The appellant was one of 1040 proprietors in the 
 undertaking called the Stock Exchange, situate in the 
 said parish, in the city of London. 
 
 His name appeared as an existing voter on the list of 
 
 and vesteditin 
 
 trustees upon voters in force at the time of the passing of the Repre- 
 
 trusts which ^ „„ , 
 
 gave to the sentation 01 the reople Act, 1884. 
 
 long as the The objects of the said undertakiug, as defined in the 
 
 sLTed,'no" hereinafter mentioned indenture of 31st December, 
 
 terest^n the" ^^'^^' "^^^^ *^® maintenance of the building called the 
 land, but only 
 
 in the profits to be made by the use of it. Held, although the deed contained 
 powers for altering or revoking the trusts at any time, that, so long as these trusts 
 subsisted, the members af the association had not any equitable freehold in the land 
 BO as to acquire the county franchise, notwithstanding that the association was not 
 incorporated or subject to the restrictions of any Act of Parliament. 
 
XLIX VICTORIA. 419 
 
 Stock Exchange, belongiDg to the said proprietors, with 1885. 
 its appurtenances, and the erection and maintenance of Watson 
 
 V. 
 
 any other buildings, in the city of London, and pro- Black. 
 viding the same with suitable furniture, fittings, and 
 accommodation, and the employing of the said buildings 
 already erected, or to be erected, for the transacting of 
 buying and selling English and foreign stocks and 
 shares in public and other companies, with, under, and 
 subject to the powers and regulations of the said deed 
 and the rules and regulations to be made pursuant 
 thereto. 
 
 The said undertaking was first constituted under the 
 provisions of a deed of settlement, dated the 27th day 
 of March, 1802, a copy of which was annexed to the 
 case. 
 
 By an indenture made 81st December, 1875, under 
 powers reserved in sec. 35 of the said deed of the 27th 
 March, 1802, between the trustees and managers at the 
 date of the said indenture of December 31st, 1875, and 
 the then proprietors (including the predecessor in title 
 of the appellant), the said deed of the 27th of March, 
 1802, was annulled, except as appears by the said deed 
 of 31st December, 1875. 
 
 By the last-mentioned deed, a copy of which was annexed to the 
 ease, and which was expressed to be made on the 31st December, 
 1875, between Thomas Bield, &c. (described as " the present trustees 
 and managers of the undertaking called the 'Stock Exchange'"), 
 of the one part, and the persons whose names and addresses were 
 in the second schedule thereto (described as " the present proprietors 
 of the capital stock of the said undertaking ") of the other part, after 
 reciting (inter alia) the original constitution of the undertaking 
 under the deed of 1802, the powers therein contained of making new 
 resolutions for the better management of the affairs of the under- 
 taking, and for altering or annulling the clauses therein and making 
 new ones in place thereof, and further reciting what amount had been 
 paid by way of subscription and calls on the shares of the undertaking, 
 and what had been applied to its purposes from accrued profits, and 
 further that the hereditaments and premises comprised in the first 
 
42P 
 
 MICHAELMAS SITTINGS 
 
 1885. 
 
 Watson 
 
 V. 
 
 Black 
 
 schedule(a),andall othertheproperty, real and persdnal, forming the capital 
 - or stock of the undertaking were then vested in the parties of the first 
 part, and further that certain resolutions had, pursuant to the provisions 
 of the said deed of 1802, been passed by the proprietors present at an 
 extraordinary general meeting on the 26th of October, 1875, and con- 
 firmed by those present at a second extraordinary general meeting on 
 the 28th of November, 1875, it was witnessed that, in pursuance of the 
 said resolutions, it was thereby agreed between the parties thereto that 
 the parties of the first part, their heirs, &c., should thenceforth hold the 
 hereditaments and premises described in the first schedule thereto 
 (comprising the freehold land and buildings of the Stock Exchange) 
 and all other the property, real and personal, forming part of the 
 capital or stock of the said undertaking, freed and absolutely dis- 
 charged from the trusts declared by the deed of 1802 (except so far as 
 any clause, Sec, in the said deed was thereby expressly preserved and 
 confirmed) and should " thenceforth stand possessed of and be interested 
 in the same premises upon and for the trusts, intents, and purposes 
 and under and subject to the covenants, agreements, and declarations 
 thereinafter expressed and declared." 
 
 The deed then set out a number of clauses agreed upon between the 
 parties, the substance of the principal ones here material being as 
 follows : — 
 
 Unless excluded by the subject or context. 
 
 " ' The proprietors ' means the persons for the time being registered 
 as the holders of shares in the undertaking. 
 
 " ' The trustees and managers ' means the said persons parties hereto 
 of the first part, or other the trustees and managers for the time being 
 of the undertaking appointed in accordance with these presents, or the 
 same persons sitting as a board, according to the context. 
 
 " ' Members ' means the persons from time to time admitted to 
 attend, and in their own right to transact business at the Stuck 
 Exchange, in accordance with these presents." 
 
 The objects of the undertaking were stated as already set out in 
 the case. 
 
 The capital or stock of the undertaking was to consist of the heredita- 
 ments and premises described in the first schedule, and all other the 
 property real and personal vested in the trustees and managers in trust 
 for the purposes of the undertaking, and the same was to be deemed to be 
 of the nominal value of £196,000, divided into £4000 shares on each of 
 which the sum of £49 was to be credited and deemed to be paid up. 
 
 (By resolutions of the 19th December, 1881, and 18th January, 1882, 
 the nominal value of the capital was altered, and fixed at £240,000, 
 divided into £20,000 shares, on each of which the sum of £12 was to be 
 credited and deemed to be paid up.) 
 
 Every share was to be distinguished by a denoting number. 
 
 Provision was made for the exchange of the existing shares of pro- 
 prietors for new shares. 
 
 The trustees and managers were to keep a share register, and issue a 
 
 {a) The first schedule comprised 
 {inter alia) the freehold laud and 
 
 buildings of the Stock Exchange. 
 
XLIX VICTORIA. 
 
 421 
 
 1885. 
 
 certificate for each share. Calls, not exceeding a specified amount, might 
 
 be made by resolution of an extraordinary meeting of proprietors, but at Watson 
 
 an interval of not less than 12 months. If any proprietor made default y, 
 
 in payment of a call, the trustees and managers might sell his share Black. 
 
 compulsorily. 
 
 Every share in the undertaking was to be transmissible as personal 
 estate. 
 
 Every transfer of a share in the undertaking was to be by an instru- 
 ment in writing, in a form to be from time to time determined by the 
 trustees and managers. 
 
 A register of transfers was to be kept, and no transfer was to be made 
 to any person who was not at the date thereof a member, or to any person 
 who was not approved of by the trustees and managers, who were to 
 have an absolute discretion as to rejecting any transfer, and not to be 
 bound to give any reason for rejecting it. 
 
 Shares of proprietors ceasing to be members, dying or becoming 
 bankrupt, or lunatic, were to be transferred within 12 months to some 
 other person, subject to the conditions of the deed. In default of such 
 transfer within the 12 months the trustees and managers, after notice 
 to the proper parties, might either purchase for the benefit of the under- 
 taking or sell such shares. Power, however, was reserved to the 
 trustees and managers, if they thought fit, to permit any proprietor who 
 should cease to be a member to retain his shares during such period as 
 they might think fit ; but no person was to be entitled to claim this 
 permission as a right. 
 
 Proprietors might sell their shares subject to a right of pre-emption 
 in the trustees and managers, to be exercised by them for the benefit of 
 the undertaking. 
 
 The trustees and managers were, subject to the control of a general 
 meeting, to have the management of the property, moneys, funds, and 
 securities and affairs of the undertaking, and for that purpose might do 
 all acts on behalf of the proprietors which were not specially reserved 
 to a general meeting or the committee for general purposes. 
 
 The trustees and managers were to appoint, and might from to time 
 remove, a secretary and such number of clerks and other officers and 
 servants as from time to time they should consider expedient, and were 
 to fix and pay out of the funds of the association their salaries and 
 w ges. They were also empowered to pay pensions to any such officers 
 or servants. They were also to pay out of the funds of the undertaking 
 all rents, rates, taxes, premiums of insurance, costs of maintenance and 
 repair, and other outgoings payable in respect of any buildings, &o., held 
 for the purposes of the undertaking, and all other charges and expenses 
 incident to the management of the Stock Exchange for the time being. 
 They were to keep an account of the moneys, effects, and securities 
 belonging to the proprietors, and of all receipts and payments, and to 
 cause a general balance-sheet to be made up on every 25th March for 
 the previous 12 months, ani submit the same to the auditors, and 
 recommend to the general meeting a dividend to be declared out of the 
 profits appearing on such balance-sheet. 
 
 They might purchase or take on lease any freehold or leasehold 
 
Watson 
 
 422 MICHAELMAS SITTINGS. 
 
 J 885. hereditaments out of the funds, and for the purposes of the under- 
 taking, and they might let any lands or buildings of the undertaking 
 and fix the rents. 
 Black. They might on behalf of the undertaking, under the authority of a 
 
 special resolution, borrow money on mortgage of any part of the 
 property of the undertaking. 
 
 They were to appoint and remunerate the solicitors, and might 
 commence or defend actions, and were also to appoint the bankers of 
 the undertaking. 
 
 They were to fix from time to time the entrance fees and annual 
 subscriptions at which members and their clerks should be admitted to 
 attend and transact business at the Stock Exchange, and the charges 
 to be made for the use of desks, sittings, drawers, and other exceptional 
 accommodation to members, and for the use of boxes and safes in the 
 strong rooms of the Stock Exchange. 
 
 They might make bye-law, rules, and regulations for the better 
 management of the affairs of the undertaking, but so as not to limit 
 the powers of the committee for general purposes, or to be repugnant 
 with the scope of the deed or any resolutions of the proprietors in 
 general meeting. 
 
 It was further provided that all moneys belonging to the undertaking, 
 and not required for immediate use, should be invested on such 
 securities, or otherwise employed as the trustees and managers should 
 from time to time determine, and that they might from time to time 
 alter and vary such investments or mode of employment as they should 
 deem expedient. 
 
 No person, whether a proprietor or not, other than such persons as 
 shoiild have been admitted as members by the committee for general 
 purposes, and their clerks, was to be permitted to enter or frequent the 
 Stock Exchange, or to transact therein the business of a stockbroker or 
 jobber. 
 
 Provision was made for the holding of ordinary and extraordinary 
 general meetings of the proprietors. 
 
 The ordinary meeting was to be held each year in March. 
 
 An extraordinary meeting might be called by the trustees and 
 managers at any time, and was to be called by them whenever a requi- 
 sition in writing, stating the object of the proposed meeting, and signed 
 by not fewer than fifty proprietors, was given to the secretary for the 
 trustees and managers. If the trustees and managers neglected to call 
 the meeting, any proprietors, not less than twenty-five in number, 
 might call it. 
 
 An ordinary meeting might without notice elect and fix the remune- 
 ration of the auditors, wholly or partially reject or adopt the accounts, 
 balance sheets, and reports of the trustees and managers, and on the 
 adoption of the accounts declare a dividend, and discuss the affairs of 
 the undertaking. 
 
 No part of the profits of any year was to be applied to the purchase 
 of any additional lands or the erection of any buildings, or to any other 
 purpose, the expenses of which in the opinion of the trustees and 
 managers ought to be provided out of or charged against capital. But 
 
XLIX VICTOEIA. 423 
 
 a general meeting might from time to time resolve that any part of 1885. 
 
 the profits of any year, not exceeding 10 per cent, thereof, should be set 
 
 aside and appropriated for the purpose of forming a reserve fund which Watson 
 should be applicable to the repairs, whether ordinary or extraordinary, Blaok 
 and maintenance of any buildings belonging to the undertaking. 
 
 All dividends on shares were to be declared by a general meeting, 
 and to be made only out of the net profits of the undertaking, which 
 were to be the sum declared to be such by the trustees and managers. 
 
 No larger dividend was to be declared than was recommended by the 
 trustees and managers, but a general meeting might, if it thought fit, 
 declare a smaller dividend. 
 
 A committee for general purposes was to be annually elected by the 
 members of the Stock Exchange. This committee was to admit such 
 persons, whether proprietors or not, as they thought proper, and their 
 clerks, to attend or frequent the Stock Exchange, for transacting 
 therein the business of a, stockbroker or jobber, on payment to the 
 trustees and managers of the entrance fee and annual subscription 
 fixed by the trustees and managers for such admission ; such com- 
 mittee was also to regulate the business of the Stock Exchange, and 
 might make rules and regulations for the good order and government 
 of its members (including rules respecting admission, expulsion, or 
 suspension) ; but except in these particulars neither the committee ncr 
 the members were to exercise any control over the affairs of the under- 
 taking, or in any matter relating thereto. 
 
 Power was given to the trustees and managers to purchase or sell 
 the shares of a defaulting proprietor, and also to purchase or sell the 
 shares of any proprietor who commenced or threatened legal proceed- 
 ings for the purpose of winding up the affairs of the undertaking, or 
 otherwise relating to the undertaking, or its affairs. 
 
 The proprietors were empowered, by special resolution to be passed 
 by a majority of two-thirds of the proprietors, to increase the capital 
 of the undertaking, and to repeal or alter any clauses of the deed, and make 
 new regulations for the management of the affairs of the undertaking. 
 
 Except SO far as the said deed of March 27th, 1802, 
 may subsist and be in force, the Stock Exchange is 
 governed and regulated by the said deed of December 
 31st, 1875. 
 
 The land upon which the Stock Exchange and its 
 appurtenances are built is freehold. 
 
 The income of the Stock Exchange is made up 
 almost entirely of fees paid for admission to the 
 Stock Exchange and charges for the use of desks, 
 sittings, drawers, and other exceptional accommodation, 
 and for the use of boxes and safes in the strong room. 
 
424 MICHAELMAS SITTINGS. 
 
 1885. and as to about one-fiftieth part of the said income of 
 Watson dividends or interest on investments in Government 
 BiIoK. ^^^ other securities. 
 
 The gross annual value of the land and buildings was 
 more than sufficient to yield to each proprietor the 
 clear yearly value of 40s. over and above all charges. 
 It was stated and admitted at the Revising Barrister's 
 Court that the clear annual value of the said land and 
 buildings was of an amount which, when divided by 
 the number of the proprietors, gave a sum of not less 
 than £10 for every such proprietor ; but after the 
 Court was held, and the Revising Barrister's decision 
 given, the appellant informed the Revising Barrister 
 that certain of the proprietors whose names were 
 marked with a X i^^ ^^^ schedule did not receive and 
 were not entitled to as much as £10 a-year-from the 
 said income, but were etititled to more than 40s., viz., 
 sums of .£4 or upwards, but less than £10. 
 
 The undertaking of the Stock Exchange has never 
 been registered as a Company under any of the Com- 
 panies' Acts or at all, nor has it been incorporated. 
 
 Forms of certificate and transfer of shares in the 
 undertaking were annexed to the case. 
 
 The form of certificate was as follows : — 
 
 "The Stock Exchange, 
 "London, 
 " This is to certify that , of the Stock 
 
 Exchange, London, gentleman, is the proprietor of one share, numbered 
 in the Stock Exchange, subject to the provisions of the deed 
 of settlement (dated 31st December, 1875) and special resolutions 
 thereunder. 
 
 " London, the day of , 18 ." 
 
 The form of transfer was as follows : — 
 " The Stock Exchange, 
 " London, 
 " I> 1 of the Stock Exchange, London, gentleman, 
 
 in consideration of the sum of paid by of the 
 
XLIX VICTORIA. 
 
 425 
 
 Stock Exchange, London, gentleman, hereinafter called the transferee, 
 do hereby assign and transfer unto the said transferee 
 share No. -of and in the undertaking called the Stock Exchange, 
 
 to hold unto the said transferee executors, &o., 
 
 subject to the provisions contained in the deed of settlement of the 
 said undertaking, dated the 31st day of December, 1875, and the reso- 
 lutions passed thereunder, and other the conditions on which the same 
 were held immediately before the execution hereof. And 
 the said transferee, do hereby agree to accept and take the said share, 
 subject to the provisions and conditions aforesaid. 
 
 " As witness, &c.'' 
 
 1885. 
 
 Watson 
 
 V. 
 
 Blaoe. 
 
 The names of other persons whose names and quali- 
 fications were set out in a schedule were objected to 
 under like circumstances. 
 
 It was objected that the name of the appellant ought 
 not to be retained on the register upon the groimd, 
 among others, that the share or interest of any pro- 
 prietor of the Stock Exchange was not an interest in 
 real estate, or at any rate not such an interest as to 
 entitle him to the franchise. 
 
 The Revising Barrister so decided, and expunged 
 the names of the appellant and the other persons in 
 the schedule. 
 
 Horace Davey, Q.C. {Mattinson with him) for the 
 appellant. The question that arises here is as to the 
 rights of those proprietors of the Stock Exchange, who 
 are already on the register, to remain there. The 
 Revising Barrister has struck off their names, and it is 
 submitted that he was wrong. That the proprietors 
 have a legal interest in the freehold of the Stock Ex- 
 change is not contended, since the legal interest is 
 clearly vested in the trustees and managers. But the 
 contention for the proprietors is, that in equity they are 
 the beneficial owners of the freehold, and that the 
 trustees and managers manage the estate on their be- 
 
 II 2 
 
Black. 
 
 426 MICHAELMAS SITTINGS. 
 
 1885. half under rules and regulations which the proprietors 
 ■yy^Tgou have made. Whether the proprietors are, or are not, 
 partners it is unnecessary to determine. It is sufficient 
 that they derive a profit from the use of the premises 
 for the purposes of the business which they have agreed 
 shall be carried on by the trustees and managers. 
 
 [Grove, J. They do not divide the profits of the 
 estate, but of the business.] 
 
 The profits of the estate are applied for the purposes 
 of the business, and a certain mode of division is agreed 
 upon. The profits of the estate are therefore in efiect 
 divided. The statements in the case show distinctly 
 that a sufficient net annual value is derived from land 
 and buildings to confer the franchise. The clause in 
 the deed of 1875, by which the proprietors agree that 
 they will not divide more than the trustees and mana- 
 gers recommend, does not prevent the proprietors from 
 having for franchise purposes a sufficient interest. It is 
 competent for the proprietors at any moment to alter 
 or rescind that clause. Moreover, the clause merely 
 regulates the amount which is to be actually divided, 
 and is no more than the clause in a partnership deed 
 that no partner will draw out more than a certain 
 amount. Whatever be the amount actually divided, 
 the entire profits of the estate belong to the proprietors. 
 Being purely a voluntary association, they might at any 
 moment put an end to the business, and either apply 
 the estate to other purposes or divide it. If it be con- 
 tended that they are not the owners of the estate, the 
 question arises to whom does it belong ? It is true 
 that in the deed of 1875 the proprietors are styled 
 " proprietors of the capital stock of the undertaking." 
 
XLIX VICTOEIA. 427 
 
 That, however, it is submitted is not inconsistent with 1885, 
 the proposition that each proprietor has also an equitable Watson 
 freehold in the land and buildings. Where a number of Blaok, 
 persons buy land, agreeing among themselves to use it 
 for a particular purpose for their own benefit, the fact 
 of their vesting it in trustees in order to enable them to 
 carry out that purpose does not prevent it remaining 
 their own property. The number of persons who are 
 proprietors can make no difference, whether they be six 
 or six hundred. It is true that here the trustees have 
 extensive powers. It is absolutely necessary that they 
 should, otherwise the business could not be carried on, 
 having regard to the number of the proprietors. The 
 powers vested in the trustees do not, it is submitted, 
 affect the proprietors' position as beneficial owners of 
 the freehold. The case differs from that of a corporation, 
 or a quasi corporation, registered under the Joint 
 Stock Companies' Acts. There the company is the 
 creature of statute, and has no power to alter the objects 
 for which it has been registered. It is true that by 
 special resolution such a company may be wound up, 
 but the point on which the appellant relies is, that 
 without external authority its existence couJd not be 
 determined ; whereas here, the association being volun- 
 tary, its existence may at any time be determined by 
 mutual agreement. Whether an individual proprietor 
 could insist on partition may be doubtful, and at all 
 events it is not desired to raise that question here. 
 But the case differs, as is submitted, from one in which 
 the parties have agreed that the business should be 
 carried on by trustees for a definite term of years, since 
 in such a case the parties would, so long as the term 
 lasted, be only entitled to receive a dividend. The 
 provision that the shares should be transmissible as 
 
V. 
 
 , Black. 
 
 428 MICHAELMAS SITTINGS. 
 
 . 1885. personal estate, does not affect the question. That is 
 ^ATgoif shown by the remarks of Tindal, C.J., in Baxter v. 
 Brown (a), who said : " for all purposes necessary 
 to effectuate the intention of the parties, personal 
 estate may be considered as real, and real estate as 
 personal, by a court of equity. But, not- 
 withstanding this acknowledged doctrine of the court 
 of equity, no one can deny that the land still remains 
 land, and nothing else; and there is no authority or 
 decision that for the collateral purpose of giving a 
 vote, which has no bearing upon or reference what- 
 ever to the objects of the deed of co-partnership, 
 the right of the cestui que trust should not remain just 
 as it would have been without such declaration of trust. 
 
 The estate, to use the language of Lord 
 
 Eldon in Grawshay v. Maule, ' though personal in 
 enjoyment ' is ' freehold in nature and quality ; ' and it 
 is to the nature and quality of the estate we are to 
 look, and not to the mode of enjoyment, when we have 
 to decide whether it confers a vote." Baxter v. Brown (a) 
 is an authority here distinctly in point. Bennett v. 
 Blain (b) does not conflict with it, but is distinguish- 
 able as not being the case of a voluntary association, but 
 of a company provisionally registered under 7 & 8 Vict., 
 0. 1 10, s. 58, while Robinson v. Ainge (c) was a case 
 where the property was vested in a benefit society. 
 Freeman v. Gainsford (d), it must be admitted, is not 
 distinguishable, and the Court must therefore elect 
 between that case and Baxter v. Brown (a) ; but it is 
 submitted that the reasons adduced by the Court of 
 Common Pleas in Baxter v. Brown (a), are more satis- 
 
 (o) 1 M. <fe 0. 198. L. JR. i a P. 429. 
 
 (b) Hopw. <fc Ph. 35 ; S. C. 15 (d) Sopw. & Ph. 255 ; S. C. 18 
 C. B. N. S. 518. C. B. N. S. 185. 
 
 (c) 1 Eopw. <fc Colt, 193 ; S. C. 
 
XLIX VICTOKU. 429 
 
 factory than those adduced in Freeman v. Oainsford (a), 1885. 
 
 and that the decision in Baxter v. Brown (b) ought Watson 
 therefore to be preferred. 
 
 Sir Henry James, Q.C. (IT. Greenwood with him) for 
 the respondent. The argument on the other side admits 
 that the legal estate in the freehold of the Stock 
 Exchange is vested in the trustees and managers ; con- 
 sequently the only title Avhich the appellant can set up 
 must be to an equitable freehold. It follows that under 
 6 & 7 Vict. c. 18, s. 74, the appellant must show either 
 that he is " in actual possession," or that he is " in 
 receipt of the rents and profits." The appellant is clearly 
 not " in actual possession " of the building of the Stock 
 Exchange, since he has no right of access to it at 
 all, except in the capacity of a member, admitted by the 
 committee for general purposes on payment of the 
 proper fees. As a proprietor of shares he has no right to 
 enter. Neither is the appellant " in receipt of the rents 
 and profits." The rents and profits are received and 
 dealt with under the terms of the trust deed, not by the 
 proprietors, but by the trustees and managers, and the 
 powers vested in them for the management of the estate 
 are of the amplest description. These powers are quite 
 inconsistent with the notion of a freehold estate being 
 vested in the proprietors. The transfer of shares, and 
 the acceptance of proposed transferees is entirely under 
 the control of the trustees and managers. They have 
 also powers to make calls, and to sell the shares of de- 
 faulting proprietors. No transfer is to be made to any 
 person not a member of the Stock Exchange, while 
 every proprietor ceasing to be a member is compelled to 
 
 (o) Mopw. <fc PK 255; S. 0. 18 C. B. N. S. 185. (6) 7 M. & 0. 19ff. 
 
 Blaoe. 
 
430 MICHAELMAS SITTINGS. 
 
 1885. part with his shares, subject to a discretion in the trustees 
 WAiaoir and managers to permit him to retain them so long as they 
 Black. ^hhik fit. A proprietor expelled from being a member 
 cannot continue to hold his shares. The powers vested 
 in the trustees and managers to enable them to deal 
 with the property of the undertaking are also most ex- 
 tensive. Thus they may purchase or take on lease any 
 freehold or leasehold messuages ; they can let or demise 
 the land and buildings of the undertaking. The funds of 
 the undertaking, which consist of personal as well as 
 real estate, are vested in the trustees and managers, and 
 they have also power to vary the investments. They 
 have also an absolute discretion in declaring what sum 
 shall constitute the net profits of the undertaking, and 
 no larger dividend is to be declared than the trustees and 
 managers shall recommend out of such net profits. It 
 follows, therefore, that under the trusts of this deed all 
 that the proprietors are entitled to receive is the pay- 
 ment, out of a mixed fund of real and personal estate, 
 of such a sum as the trustees and managers may think 
 proper to divide. It is true that the deed reserves a 
 power to the proprietors to revoke or alter the trusts, 
 but, so long, at all events, as the trusts subsist, 
 the proprietors can have no interest in the rents and 
 profits, but are merely entitled to receive a money pay- 
 ment. The form in which shares are transferred, as well 
 as the declaration that they shall be transmissible as 
 personal estate, are both indicative of the true character 
 of the proprietors' interest. 
 
 The distinction relied on by the other side between 
 voluntary associations and corporations, or quasi cor- 
 porations, registered under the Joint Stock Companies 
 ,\cts, cannot be maintained. The Stock Exchange 
 Association merely escapes registration by the accidental 
 
Watson 
 
 V. 
 
 Blaoi^ 
 
 XLIX VICTORIA. 431 
 
 circumstance of its having come into existence prior to 1885. 
 the Joint Stock Companies Acts. But, in order to 
 decide the present question, the substance of the matter 
 must be regarded, and this cannot depend on a mere 
 question of incorporation. Baxter v. Brown (a) has, it 
 is submitted, been overruled by subsequent cases. But 
 whether overruled or not, it is distinguishable. In 
 Baxter v. Brown (a) there were no such powers in the 
 trustees or restrictions on the shareholders as here. 
 The decision proceeded on the ground that there 
 were no trusts inconsistent with an equitable free- 
 hold in the shareholders. Here, on the contrary, 
 there are such trusts. In Bennett v. Blain (6) where 
 the vote was disallowed, the trusts resembled the 
 trusts of the present deed far more nearly than in 
 Baxter v. Brown (a), although even in Benvnett v 
 Blain (b) the trusts were not so stringent in their 
 character as here. Whether Bennett v. Blain (b) be 
 or be not inconsistent with Baxter v. Brown (a), it 
 is submitted that it should govern the present case. 
 Freeman v. Gainsford (c) adopted the reasoning of 
 Bennett v. Blain (b), and followed its authority ; and, 
 in regard to Freeman v. Gainsford (c), it is admitted, 
 on the other side, that it cannot be distinguished. In 
 Myers v. Perigal (d) Lord St. Leonards questioned 
 the authority of Baxter v. Brown (a) and declined to 
 follow it in a case arising under the Statute of 
 Mortmain. 
 
 [He referred also to Watson v. Spratley (e) and 
 Spencer v. Harrison (/).] 
 
 {a) T M.JcG. 198. (d) 2 i)e G. M. <k G. 622. 
 
 (b) Hopw. <£.• Ph. 35 ; S. C. 15 (e) 10 Exch. 222. 
 C. JB. N. S. 518. (/) Ante, p. 61 ; S. 0. L. S. 5 C. 
 
 (c) ffopw. & Ph. 255 ; S. C. 18 P. D. 97. 
 a B. N. S. 185. 
 
432 MICHAELMAS SITTINGS. 
 
 1885. Horace Davey, Q.C., in reply, contended that the 
 
 Watsot~ Court must now elect between the cases of Baxter v. 
 BiI'oK Brown (a) and Freeman v. Gainsford (b), as they were 
 incapable of being distinguished. In regard to Myers v. 
 Perigal (h), he pointed out that Lord St. Leonards only 
 impugned its authority as applicable to a case under 
 the Statute of Mortmain, and not in reference to one 
 arising under the Franchise Acts. 
 
 Cur. adv. vult. 
 
 The judgment of the Court (c) was now (d) 
 delivered by 
 
 Cave, J. The question in this case is whether the 
 appellants have an equitable interest in land, and are 
 in the receipt of the rents and profits thereof within the 
 meaning of s. 74 of 6 & 7 Vict. c. 18. 
 
 In our judgment it is too clear for serious argument 
 to the contrary that the shareholders in an unincorpor- 
 ated company may, by arrangement among themselves, 
 divest themselves of all interest in the real property of 
 the company, while retaining an interest in the profits of 
 the concern. That proposition is distinctly laid down 
 in Bennett v. Blain (e), and is supported by the earlier 
 decisions of Buhner v. Norris (/), Watson v. Spratley (g), 
 and Myers v. Perigal (h), and by the subsequent 
 case of Freeman v. Gainsford (b). 
 
 It was admitted that this was so when the company 
 was incorporated, but Mr. Davey sought to draw a 
 
 (a) 7 M. <t- 0. 198. (e) Bopw. <t Ph. 36 j S. O. 16 
 
 (i) Hopw. <fe Ph. 255 ; S. C. 18 C. B. N. S. 518. 
 
 C. B. N. S. 185. (/) K. <fc G. 321 ; S. 0. 9 C. B. 
 
 (c) Coleridge, C.J., Qrovt and N. S. 19. 
 
 Cave, JJ. (g) 10 Exch. 222. 
 
 (d) Nov. 5. (h) 2 De 0. M. ofc G. 622. 
 
XLIX VICTORIA. 433 
 
 distinction between corporations and companies regis- 1885. 
 tered under an Act of Parliament and mere partnerships Watson 
 formed under no Act of Parliament. Black. 
 
 It is clear, however, that the judgment in Bennett v. 
 Blain {a) does not proceed on any such distinction. A 
 number of persons may agree among themselves that 
 lands shall be bought and vested in trustees upon 
 trusts, which shall give the members no equitable 
 interest in those lands, but only an interest in profits to 
 be made by the use of them. If they so agree, then so 
 long as that agreement lasts the members have no equit- 
 able interest in the land, but only an interest in the 
 nature of personalty in the profits of the undertaking. 
 
 The case of Baxter v. Brown (b) was relied on. That 
 case has been sometimes doubted, and sometimes 
 distinguished. If the Court there meant to lay 
 down the principle that members of an association 
 cannot by agreement among themselves divest them- 
 selves of any equitable interest in lands pur- 
 chased for the purposes of the association, and 
 cannot vest those lands in trustees free from such 
 equitable interest, that case is opposed to a cloud of 
 authorities, and is not law. If, however, the Court 
 there only meant to decide that in that case the parties 
 had not agreed to divest themselves of their equitable 
 interest, the case is distinguishable. 
 
 In the case now under consideration, it is clear that 
 the members meant to vest the freeholds in the trustees 
 free from any equitable interest in the individual 
 members in the land itself, and to give to the members 
 of the association an interest in the profits of the 
 concern only. There is nothing contrary to law in 
 
 {a) ffopw. & Ph. 35; S. C. 15 (5) 7 M.^G. 198. 
 
 a B. N. S. 518. 
 
434 MICHAELMAS SITTINGS. 
 
 1885. such an arrangement ; but one consequence of it is that 
 
 Watson ^^^ individual members have no equitable interests in 
 
 Black. *^® freeholds vested in the trustees, and consequently 
 
 the decision of the Revising Barrister was correct, and 
 
 must be affirmed. 
 
 Decision affirmed. 
 
 Solicitors — For Appellant, Travers Siriith <& 
 Braithwaite, 
 For Respondent, Gorbin & Oreener. 
 
XLIX VICTORIA. 4S5 
 
 Tanjtee, Appellant ; Carter, Respondent. 
 
 Banks and others, Appellants ; Mansell, 
 
 Respondent. 
 
 i oocu- 
 
 Tanner V. Carter. 
 
 1885. 
 A T a Court held to revise the list of voters for the oct. so. 
 
 borough of Cambridge, the respondent duly objected to students <. 
 the name of the appellant being retained in the list of ^^a^be°g ^|* 
 parliamentary voters for the said borough as an in- ti^g "f Oiiftird 
 habitant occupier of a dwelling-house within the said andOtmirids'e, 
 
 '■ ° though at a 
 
 borough. yearly rental, 
 
 who during 
 
 The following facts were established by the evi- vaoationdonot 
 
 reside and 
 dence :— have no power 
 
 The appellant is a student attached to one of the out permission 
 colleges in the University of Cambridge. He is of full coUege antho- 
 age, and has occupied a set of rooms in college for the durin/the"^"* 
 qualifying period at a yearly rental, payable by three P''^^''"^^'^.^^*" 
 terminal payments. The rates are paid by the college, inhabitant 
 
 ^ •' . occupiers so 
 
 and are charged to the appellant with the rent. The as to entitle 
 
 • 1 1 ■ • • 1 1 them to the 
 
 rooms are furnished and kept m internal repair by the franchise, 
 appellant. 
 
 There is no express agreement with regard to the 
 hire of the rooms. 
 
 The rooms have an outer door opening on to a 
 common staircase. There are two keys to this door, one 
 in the possession of the appellant, the other in the 
 custody of the college servant, called a bed-maker, who 
 attends to the rooms. By the latter key the college, 
 
436 MICHAELMAS SITTINGS. 
 
 1885. authorities obtain access to the rooms when required. 
 Tanner The appellant is required to employ the college servants 
 Cabteb. ^ attend upon him in the rooms. 
 
 The rooms form part of the college buildings, which 
 are approached from the street by an outer gate, of 
 which the college authorities have the control. The 
 appellant is not permitted to go out of to bring friends 
 into the college by this outer gate after 10 p.m. 
 
 The appellant is subject to the discipline of the 
 college. It is a breach of such discipline for a student 
 of the college to remain out of college after midnight. 
 Students are not permitted to reside in or visit their 
 rooms during the vacations, which extend to about half 
 the year, without the express permission of the college 
 authorities. During such vacations the rooms are 
 occasionally used by the college authorities for visitors 
 for short periods, without the express consent of the 
 students. When used for long periods such consent is 
 usually obtained. 
 
 Students are liable to be removed from the rooms, 
 without notice, for misconduct or breach of the rules of 
 the college. No married student is permitted to reside 
 in the rooms with his wife. 
 
 By the Camihridge Award Act, 1856 (19 & 20 Vict. 
 xviL), it is provided by sec. 24 that, " as respects college 
 property, the whole thereof shall be deemed to be in the 
 occupation of the college, although parts may be exclu- 
 sively occupied by individual members or students." 
 
 It was contended by the respondent that by reason 
 of this enactment there could be no occupation of 
 college property by students; secondly, that the ap- 
 pellant was not an inhabitant occupier as tenant of a 
 dwelling-house within the meaning of sec. 3, subs. 2, of 
 the Representation of the People Act, 1867. 
 
XLIX VICTORIA. 437 
 
 It was contended by the appellant that such occu- 1885. 
 pation was rendered unnecessary in the case of the tannbr 
 appellant by reason of the proviso contained in sec. 15 cabtbb. 
 of the Registration Act, 1885 ; secondly, that the 
 appellant was an inhabitant occupier as tenant of a 
 dwelling-house within the borough within the meaning 
 of sec. 3., subs. 2, of the Representation of the People 
 Act, 1867. 
 
 The names of 509 other persons were objected to 
 under like circumstances. 
 
 The Revising Barrister decided that by reason of the 
 proviso contained in sec. 15 of the Registration Act, 
 1885, the Cambridge Award Act did not prevent the 
 appellant from being registered as a parliamentary 
 voter in respect of his occupation of the said rooms ; 
 but that the appellant was not an inhabitant occupier 
 as tenant of a dwelling-house within the meaning of 
 sec. 3, subs. 2, of the Representation of the People Act, 
 1867, and that such occupation was not rendered un- 
 necessary in the case of the appellant by reason of the 
 proviso contained in sec. 15 of the Registration Act, 
 1885, and he expunged the names of the appellant and 
 the said other persons from the list. 
 
 Henn Collins, Q.C., for the appellant. The question 
 before the Court arises in consequence of the repeal of 
 sec. 78 of the Reform Act. Hitherto that section has 
 operated to prevent members of the Universities of Ox- 
 fordandCambridgehom acquiring the borough franchise 
 in respect of the occupation of their college chambers. 
 But the section is now repealed by sec. 15 of the Registra- 
 tion Act, 1885. Sec. 15 of the Registration Act, 1885, 
 further provides that " no person shall be prevented by 
 any other Act from being registered as a parliamentary 
 
438 
 
 MICHAELMAS SITTINGS. 
 
 1885. voter in respect of the occupation of any chambers or 
 Tanner premises in any of the colleges or halls of the Univer- 
 Caeteb. sities of Oxford or Cambridge." This latter clause 
 has got rid of the special difficulty in relation to the 
 franchise, which the Cambridge Award Act, 1856, had 
 created on the subject of occupation. On that point, 
 however, the Revising Barrister's decision was in the 
 appellant's favour, and consequently no question arises as 
 to that part of his decision. The removal of disabilities 
 by sec. 15 is a clear indication that the Legislature in- 
 tended to enfranchise the occupantsof college chambers, 
 and believed that, in so enacting, the object had been 
 attained. The appellant must, of course, admit that it 
 lies upon him to show fulfilment of the statutory condi- 
 tions of the franchise, either under the Act of 1832, or 
 under that of 1867. But as to this the case distinctly 
 finds that the appellant " occupied a set of rooms in 
 college for the qualifying year at a yearly rental " — a 
 finding, it is submitted, sufficient primd facie to qualify 
 him. The Eevising Barrister, however, appears to have 
 considered that, because the appellant had entered into 
 no express agreement as to his rooms with the authori- 
 ties of his college, there could be no relation of tenancy 
 between them. But, in order to create a tenancy, no 
 express agreement was necessary. There was payment 
 of rent and occupation. The fact of there being dupli- 
 cate keys to the appellant's door, one of which remained 
 in the custody of the college servant, could not prevent 
 the appellant from being tenant, nor yet the locking by 
 night of the college gates. Similar restrictions exist at 
 the Burlington Arcade and the Albany, without inter- 
 fering with the occupiers' tenancies. It is true that at 
 the Universities the restrictions are imposed for the 
 purposes of discipline, but that in no way militates with 
 
XLIX VICTOKIA. 
 
 439 
 
 the view that there is a tenancy. It is also true that _ 
 during vacation students are not allowed to reside with- 
 out the permission of the authorities ; hut, in practice, 
 candidates for honours usually obtain the permission, 
 and do not experience any difficulty in obtaining it. 
 Whether, in cases where the permission is not granted, 
 an interruption takes place in the tenancy is, it is sub- 
 mitted, a subordinate question. The difficulty in the 
 mind of the Revising Barrister seems to have been, not 
 as to interruption, but whether tenancy existed. If it 
 be admitted that a tenancy existed, the case shows a 
 sufficient duration of it. The opinion of Bovill, C.J., 
 in Bakewell v. Peters (a), is in the appellant's favour ; 
 but for the operation of sec. 78 of the Reform Act, his 
 Lordship was of opinion that the occupation franchise 
 could have been acquired for college chambers, as form- 
 ing separate dwelling-houses. Sec. 78 is now repealed. 
 The difficulty, therefore, which, when Bakewell v. 
 Peters (a) was decided, prevented the occupation 
 franchise being acquired for college chambers no longer 
 exists. 
 
 1885. 
 
 Tanner 
 
 V. 
 
 Cabtsb. 
 Banks 
 
 V. 
 
 Mansell. 
 
 [Geove, J. In Bakewell v. Peters the point as to 
 residence during vacation was never raised.] 
 
 Moulton, Q.C. {Gockerell with him) was not called 
 upon. 
 
 Banks and Others v. Mansell. 
 
 A T a Court held by the Revising Barrister for the 
 
 borough of Oxford the respondent objected to the 
 
 appellant BanJcs, and others, being retained on the 
 
 (a) 1 Sopw. <fe Colt. 264 ; 5. C. L. B. i C P. 543. 
 VOL. I. ^ K 
 
440 
 
 1885. 
 
 MICHAELMAS SITTINGS. 
 
 occupiers' list, on the grounds {inter alia) as to each 
 Banks appellant — 
 
 ANSBLL. J rpjj^g^^ j^^ j^^^^ ^^^ occupied, either as owner or 
 
 tenant. 
 
 2. That he had not occupied for twelve months to 
 
 July 15th. 
 
 3. That he had not been an inhabitant occupier for 
 
 twelve months up to July 15th. 
 
 The following were the material facts established by 
 the evidence : — 
 
 Every name objected to was that of an undergraduate, 
 occupying rooms in a college or hall of the University 
 of Oxford. 
 
 No formal agreement for a tenancy was entered into 
 between the college on the one side and the under- 
 graduate on the other; but in some of the colleges 
 printed copies of the college regulations were supplied 
 to the undergraduate when he came into residence. 
 
 No notice to quit was given by either side previous 
 to the surrender of a set of rooms. 
 
 The colleges reserved to themselves the right to enter 
 an undergraduate's room when they thought fit, and, in 
 Balliol College, the right was claimed (to be exercised 
 with reason) of using the rooms for academical pur- 
 poses, such as a college meeting or lecture. 
 
 The general right was qualified in the case of 
 Queen's College, where it existed only in the person of 
 the junior bursar acting as landlord on behalf of the 
 college for landlord purposes. 
 
 Rent.—lTO. every college an annual rent was paid by 
 the undergraduate by three terminal payments, i.e., at 
 Easter, Midsummer, and Christmas. 
 
 Rates were paid for the whole of the year in every 
 
XLIX VICTOKIA. 441 
 
 1885. 
 
 instance by the undergraduate, either directly or in- 
 directly : and in some colleges, where the value of the Banks 
 
 V. 
 
 rooms permitted, the inhabited house duty as well. Mansblu 
 
 The undergraduate was also charged, in one form or 
 another, for repairs and dilapidations. 
 
 Furniture. — In some of the colleges this was the 
 exclusive property of the college, and a charge for it 
 was included in the rent; but undergraduates were 
 allowed to make their own additions, while in other 
 colleges they furnished their rooms themselves. 
 
 In Balliol an undergraduate could not even add to 
 his furniture without permission of his college. 
 
 A servant was attached to each set of rooms, and 
 was provided with a key, which enabled him to enter 
 the rooms as he pleased. 
 
 The servant was supplied by the college, and the 
 undergraduate had no voice in his selection. 
 
 At the end of each term the undergraduate was 
 required to vacate his rooms, and in the same way, 
 when the term began, he was required to return to 
 them. 
 
 During term he could not leave his rooms so as to 
 go outside the college after 9 p.m., nor could he enter 
 the college so as to get to his rooms after 9 p.m., except 
 by payment of a fine, which was increased in amount 
 according to the lateness of the hour that he chose to 
 return. 
 
 Vacation. — During vacation an undergraduate could 
 not reside in his rooms without permission, but he was 
 allowed to keep in them his furniture and personal 
 effects, and, in that sense, to occupy them. 
 
 It was usual in vacation for the college authorities, 
 in some instances, to lend an undergraduate's rooms to 
 visitors without asking leave of the undergraduate, this 
 
 S K 2 
 
442 MICHAELMAS SITTINGS. 
 
 1885. consent being taken for granted; and in one college 
 Banks {Wadham) an instance was given where an under- 
 
 V. . • 
 
 Mansell. graduate was refused permission to occupy his rooms m 
 vacation on the ground that they had been thus lent 
 by the college ; and, in another (Keble), it was usual in 
 the long vacation to lend all the rooms in the college to 
 members of the Diocesan Conference, without in any 
 way consultiug the undergraduate occupants. 
 
 It was also proved by some of the college representa- 
 tives, who gave evidence, that they considered they had 
 a right to let an undergraduate's rooms in the vacation 
 if they wished it, but no specific instance of this having 
 been done was given. 
 
 The existence of such a right was denied by two 
 of the colleges (Pembroke and Queen's), and in another 
 (New College) it was proved that if an undergraduate's 
 room was let in the vacation and rent received, the 
 amount so paid would afterwards be allowed to the 
 undergraduate. 
 
 Keys. — The undergraduate had the use of one key, 
 and his servant had the use of another. 
 
 In every college the tenure of an undergi-aduate's 
 rooms was subject to good behaviour and the require- 
 ments of discipline, of which the college authorities 
 constituted themselves the sole judges. 
 
 It was proved, in the case of every name objected to, 
 that the undergraduate in point of fact did not, and 
 moreover could not, without leave, occupy his rooms 
 during the vacations; and that these vacations, of 
 which there were three, comprised a period of some- 
 thing like six months in the year. 
 
 During these vacations an undergraduate was allowed 
 to occupy his room by means of his furniture and per- 
 sonal effects, and in some cases he could retain the key 
 
XLIX VICTORIA. 
 
 443 
 
 but his control over the key and his personal efifects 1^85. 
 
 was qualified by the fact that he could not use the one Tannbb 
 or touch the other without permission. Caet'eb. 
 
 The further fact was established that in 1878 or 1879 ^^''^^ 
 the rooms in all the colleges were assessed for the poor Manssm. 
 rate, and that the valuation was made on the basis that 
 undergraduates' rooms were only occupied about six 
 months in the year. 
 
 The Revising Barrister held, in the case of each 
 undergraduate objected to, that he was not on the 15th 
 day of July then last, and had not, during the whole of 
 the preceding twelve months, been an inhabitant occu- 
 pier as " owner or tenant " of any dwelling-house within 
 the borough, as required by the Representation of the 
 People Act, 1867; and further that he had not during 
 such period been an " inhabitant occupier" of a dwelling- 
 house within the meaning of that Act. 
 
 Crump, Q.C. {H. Young with him), was heard for the 
 appellants. 
 
 Asquiih, for the respondent, was not calledupon. 
 
 Lord Coleridge, C.J. Although cases of interest 
 may now arise in reference to the franchise of members 
 of the Universities of Oxford and Cambridge, and the 
 case before us has been treated as one of importance, I 
 think there can be no difficulty about our present 
 decision. It is true that by the repeal of the 78th 
 section of the Reform Act (2 & 3 Will. 4, c. 45), the 
 special disqualification, which that section had created, 
 by enacting that no person should be entitled to vote in 
 respect of the occupation of chambers in any college or 
 hall of these two Universities, has been removed. The 
 
444 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 Tanner 
 
 V. 
 
 Oakteb. 
 Banks 
 
 V. 
 
 Mansell. 
 
 repealing section — sec. 15 of the Registration Act, 1885 
 — also contains the further provision, that no person 
 shall be prevented by any other Act from being regis' 
 tered as a voter in respect of his occupation of chambers 
 in any college or hall of these Universities. That pro- 
 vision, however, evidently points among other things to 
 such an enactment as was contained in the Cambridge 
 Award Act, 1856, the terms of which interposed a 
 special difficulty in the way of the franchise being 
 obtained for college chambers. So far as the general 
 law is concerned, the effect of the Registration Act, 
 1885, is to leave the occupiers of college chambers 
 in precisely the same position as other inhabitant occu- 
 piers ; and one condition of the franchise of inhabitant 
 occupiers is that they should have had, for the required 
 period, an unbroken residence. Cases there will no 
 doubt be, where the residence in college chambers has 
 been a continuous one, in which sec. 15 will have a 
 direct operation, and will enable the franchise to be 
 now acquired under the general law by persons who, 
 by special legislation, were hitherto precluded from 
 acquiring it. But what is here contended for by the 
 appellants is that, because a special disqualification 
 under which they laboured has been removed, therefore 
 all other legislation has been suspended in their favour. 
 For that contention there is no foundation. An under- 
 graduate, like any other inhabitant occupier, must have 
 resided for the statutory period, before he can become 
 entitled to the franchise. Now in these two Univer- 
 sities, as a matter of fact, during a large portion of the 
 year, undergraduates do not reside ; they are sent down 
 at a particular time, and for a definite period they can- 
 not return. What use is made of their rooms during 
 the interval rests with the college authorities. Admit- 
 
XLIX VICTOKIA. 
 
 445 
 
 tedly, in the case of the general body of undergraduates, 
 the condition precedent of residence is not complied 
 with, since, both in the Oxford and the Cambridge 
 case, it is equally clear that undergraduates cannot 
 reside during vacation without permission. Where 
 an undergraduate is permitted to, and does, in fact, 
 reside during the whole qualifying year, and fulfils the 
 other statutory requirements, that is of course a different 
 case. Here the necessary condition precedent of resi- 
 dence, not having been complied with, the Revising 
 Barristers were perfectly right in disallowing the votes. 
 
 1885. 
 
 Tanneb 
 
 V. 
 
 Oarteb. 
 Banks 
 
 V. 
 
 Mansell, 
 
 Grove, J. In arguing the case from Cambridge, 
 reliance has been placed on the statement that the 
 appellant "occupied a set of rooms in college for 
 the qualifying period at a yearly rental," and, taking 
 these words alone, one might be disposed to read them 
 in the sense which has been contended for. But when 
 we read the whole case, and consider the circumstances 
 connected with the students' occupation of their roonas, 
 it becomes clear that although permission to reside 
 during vacation may in certain cases be given, it is 
 not and could not be given generally ; and, as a rule, 
 students are absent during the whole of the vacation ; 
 and, excepting in the case where leave is granted, the 
 absence is compulsory. There is, therefore, a definite 
 period of the year during which students as a rule are 
 not allowed to occupj' their rooms. Where, indeed, aii 
 absence is of an accidental and undefined character, as 
 in the case of a coachman, absent from home for a few 
 days, and engaged in driving his master, I do not think 
 that the franchise would necessarily be lost. But here 
 the absence is definite and compulsory. The contract 
 appears to have been, in reality, for occupation during 
 
446 
 
 MICHAELMAS SITTINGS. 
 
 1885. 
 
 Tanneb 
 
 V. 
 
 Carter. 
 Bakes 
 
 V. 
 
 Manskll. 
 
 atout six months, with permission to leave certain 
 articles, such as books and furnittire, during the 
 remainder of the year. It certainly seems a contra- 
 diction in terms to say that an undergraduate has 
 occupied his rooms for twelve months, when he has 
 contracted to occupy, and has in fact occupied them for 
 six months only. 
 
 Cave, J. I am of the same opinion. It is impos- 
 sible to attach greater effect to sec. 15 of the Registra- 
 tion Act, 1885, than that it puts members of the two 
 universities in respect of their college chambers on the 
 same footing as the rest of her Majesty's subjects. 
 The only question, therefore, necessary to discuss is, 
 whether the appellants have fulfilled the requirement 
 of the enactment that they should have been inhabitant 
 occupiers for the period of twelve months. During one- 
 half of that period they have not been, in fact, resident ; 
 but it has been contended that, though not actually 
 resident, they have been so constructively. And, un- 
 doubtedly, there are cases where it has been held that a 
 person may be constructively, though not actually, 
 resident. But, on examining those cases, we find the 
 principle of decision to have been that the person held 
 to have been constructively resident had a house to 
 which he had the power to return at any time without 
 the consent of any other person. That is certainly not 
 the position of these undergraduates, who, during the 
 vacation, could not return to their rooms without the 
 consent of the college authorities. I am quite unable 
 to distinguish this case from that of a man who 
 before 41 Vict. c. 3, let his house, and was, by so doing, 
 held to cease from being constructively resident. The 
 undergraduate impliedly agrees with the authorities 
 
XLIX VICTOKIA. 
 
 447 
 
 that,, during a definite period, he will not return to his 
 rooms without obtaining their permission. Where an 
 occupier has put it out of his power to return without 
 obtaining permission from another, he cannot, according 
 to the principle on which the authorities are based, be 
 held to be constructively resident. 
 
 Decisions affirmed. 
 
 Solicitors — For appellants, Foss & Ledsham, for 
 /. E. L. Whitehead, Cambridge. 
 Stretton & Billiard, for Ghallenor 
 & Son, Abingdon. 
 
 For respondents, Beane & Nash, for 
 Ginn & Matthew, Gamhridge. 
 G. B. B. Budley, Oxford. 
 
 1885. 
 
 Tanker 
 
 V. 
 
 Caeteb. 
 Banks 
 
 V. 
 
 Mansell. 
 
448 
 
 MICHAELMAS SITTINGS. 
 
 Magaerill, Appellant ; Overseers of the 
 Townships of Whitehaven and Preston 
 Quarter, within the said Borough, Eespon- 
 dents. 
 
 1885. 
 
 Oct. 31. 
 
 The appellant, 
 having applied 
 to the guar- 
 dians of the 
 poor for work, 
 was employed 
 by them by 
 way of relief 
 in breaking 
 stones, and 
 paid out of the 
 parish funds 
 for relief of 
 the poor. The 
 payment much 
 exceeded the 
 value of the 
 work, the 
 amount being 
 measured by 
 the guardians, 
 not by the 
 value of the 
 work, but by 
 the wants of 
 the applicant, 
 having regard 
 to the number 
 of bis children. 
 Held, that 
 this was a 
 receipt of 
 parochial 
 relief which 
 disqualified 
 the appellant. 
 
 THIS was a case stated by the Revising Barrister for 
 the borough of Whitehaven in the following terms : — 
 
 "'Jaines Magarrill, married man, with three children, 
 applied to Mr. Williain 8. Hamilton, relieving officer 
 for Whitehaven, for work. The relieving officer gave 
 Magarrill a ticket, headed, ' Whitehaven Union. 
 Number on relief list 19, page on application book, 
 159. 8th week of quarter ending Midsummer, 1885. 
 To Mr. Robert Wilson, taskmaster to the Whitehaven 
 Guardians. Please allow James Magarrill, aged 32, 
 of 83, Newtown, to break four bushels of stones 
 per day,' directing him to take the ticket to the 
 taskmaster of the union, who set Magarrill to stone 
 breaking. Magarrill, in the course of his employ- 
 ment, brings back the ticket at the end of the 
 day, and obtains Is. 3d., which Is. Sd. is paid by 
 the relieving officer out of the funds forming part of 
 the parochial funds for the relief of the poor. This 
 employment continued for six weeks, during which 
 time there was great distress in the district. The stones 
 to be broken were collected by Magarrill, and others in 
 the same position as Magarrill, under the supervision of 
 the taskmaster, and brought to a yard in Whitehaven 
 
XLIX VICTORIA. 449 
 
 1885. 
 
 hired especially by the guardians, and there broken. 
 
 The guardians have advertised these broken stones for Magabbill 
 
 V. 
 
 sale, and the only offer they have received is Is. 6cJ. per Ovk'bsbebs 
 
 or 
 ton, which was not entertained. The guardians ask Whitehaven 
 
 &c, 
 
 5s. per ton, which would only recoup them for money 
 spent in the operation. The guardians are bound by 
 Out-Door Relief Eegulation Order, article 6, which 
 prohibits the allowing relief to an able-bodied male 
 pauper out of the workhouse, unless he be set to work 
 and kept to work by the guardians as long as he con- 
 tinues to receive relief. The guardians are paying rent 
 for the yard. The board act upon the principle that 
 every payment made by them to paupers assumes the 
 form of relief, not of wages, and consequently must be 
 measured by the wants of the applicant, and not by 
 the quantity of work done. In conformity with this 
 principle, the able-bodied pauper who has more than 
 two children, receives 3d. per day more than others for 
 each child above that number. On this case fifty-three 
 other cases depend." 
 
 The Revising Barrister expunged the names of Ja/mes 
 Magwrrill and the other persons whose names were in 
 a schedule, on the ground of parochial relief. 
 
 Asquith, for the appellant, submitted that the money 
 paid by the guardians to the appellant was remunera- 
 tion for work done, and did not, therefore, constitute 
 parochial relief so as to disqualify under the Reform 
 Act. 
 
 He cited Ketnp's case («) and Taylor's ease (b) as 
 showing, under similar circumstances, there was not 
 necessarily a disqualification, though he admitted that 
 in both those cases the vote had been struck off. 
 
 (a) IP.i. K., 128. (5) I P. E. ,Ss D., 156. 
 
450 MICHAELMAS SITTINGS. 
 
 1885. No counsel appeared for the respondents. 
 
 Magabrill 
 v. 
 
 OvBKSEBBs Lord Coleridge, C.J. In this case there can be no 
 Whitehaven doubt that the Revising Barrister was right in holding 
 "■ that the appellant had received parochial relief. It is 
 no part of the duty of the guardians to provide stones 
 for the roads, though, before granting relief to able- 
 bodied paupers, it is their duty to provide such 
 persons with work. Accordingly, it became the duty 
 of the guardians to provide work for the appellant. 
 This they did, paying the appellant at a rate which 
 they probably knew to be, as it in fact proved, wholly 
 unremunerative to the ratepayers. The amount paid 
 was measured by the guardians not by the value of the 
 work, but by the number of the appellant's children, 
 their reason for making the payment being that the 
 man was in distress. The money being intended to be 
 received, and being in fact received, as parochial 
 relief, there can be no question that the payment was 
 one which disqualified the appellant. 
 
 Geove and Cave, JJ., concurred. 
 
 Decision affirmed. 
 
 Solicitors — For appellant, Helder & Roberts, for 
 
 E. Atter, Whitehaven. 
 
XLIX VICTORIA. 451 
 
 Wells, Appellant ; Stanforth, Kespondent. 
 
 AT a Court held by one of the Revising Barristers 1885. 
 appointed to revise the lists of voters for the county ■ 
 
 The omission 
 
 of Middlesex, certain supplemental lists of claims by by overseers 
 occupiers and by lodgers not already on the register within the 
 "which had been received by the Clerk of the Peace gcribed'by the 
 from the overseers of the parish of Hornsey, came on ^cf ^5°" 
 for revision. claiinsof 
 
 which they 
 
 The overseers of the parish of Hornsey received all ^^"^^ received 
 
 due notice 
 
 the said claims in due and proper time, but they did does not 
 
 operate to 
 
 not Sign or publish any of them on or before the 25th invalidate the 
 of August, 1885, or until two or three days after that Therefore, 
 
 1 , where claims 
 
 l^te. Ijy occupiers. 
 
 It was contended on behalf of the appellant that the *o?ontht^old 
 Eevising Barrister had no power to accept, revise, or feg's*^''. ^ 
 
 ° ^ r ' > been received 
 
 allow the said supplemental lists or any of them, on the ^y overseers 
 
 m due time, 
 
 ground that the said supplemental lists had not been Held, that the 
 
 Revising 
 
 signed or published by the said overseers, in accordance Barrister was 
 with precepts Nos. 43 and 45 in the 2nd schedule, revising sup- 
 part 2, to 48 Viet., c. 15. LtTofruch 
 
 The Revising Barrister decided that a disregard of ^^*™'„'^i^°^?['' 
 the said precepts, Nos. 43 and 45, did not of itself invali- ^^ *''® "Jf^' 
 
 r tr > seers until 
 
 date the said supplemental lists, and he disallowed the '^"^^^ ^^7^ 
 
 ' "■ after the time 
 
 objection and revised and allowed the said supplemental prescribed for 
 
 publication, 
 lists. 
 
 The question for the Court was whether he was right 
 
 in so doing. 
 
452 MICHAELMAS SITTINGS. 
 
 ^^^^- Orantham, Q.C. (Robins with him), for the appellant. 
 
 Wells The requirements of the Registration Act, 1885, not 
 Stakfobth. having been complied with, the Revising Barrister was 
 wrong in revising the supplemental claims lists. An 
 express duty has been imposed by the Legislature 
 on the overseers, which they have here disregarded. 
 The instructions to overseers (Registration Act, 1885, 
 sched. 2, parag. 42) are express in requiring them on 
 ' ■ or before the 25th of August to make out lists of those 
 persons who, on or before the 20th of August, have 
 claimed either as occupiers or new lodgers ; and by 
 parag. 43 they are further required, on or before the 
 25 th of August, to sign and publish the said lists. 
 Here, although the claims were delivered to the over- 
 seers in due time, the overseers did not publish their 
 claim lists till the 28th of August. The date of publi- 
 cation by the overseers is, it is submitted, material for 
 the following reason. The Legislature allows an in- 
 terval of fourteen days for inspection by the public 
 between the day of publication and the commencement 
 of the revision. In the present year the revision was 
 fixed by statute to commence on September 8th, so that 
 there were only eleven days available for inspection 
 before the commencement of the revision. 
 
 [Cave, J. How do you deal with sec. 38 of 6 & 7 
 Vict, c. 18 ?] 
 
 That section requires " due notice." 
 
 [Cave, J. The case states here that notice was given 
 in due time.] 
 
 It is submitted that there must also be publication, 
 
XUX VICTOIUA. 453 
 
 otherwise the rest of the electors would inevitably be ^^^^- 
 prejudiced. "Wells 
 
 V. 
 
 Stanforth. 
 
 [Cave, J. Sec. 38 does not mention publication. 
 Persons entitled to object can do so at the Ee vision 
 Court.] 
 
 If the lists are not duly published there may be no 
 time for adequate inquiry. 
 
 [Coleridge, C.J. Is it not a principle of registration 
 law that a person who has done everything that the 
 law requires of him is not to be prejudiced by the 
 default of the overseer ?] 
 
 If the requirement of publication be directory, it is 
 diflScult to see what other requirement, forming part of 
 the machinery of registration, can be held imperative. 
 The 18th section of the Registration Act, 1885, merely 
 says that " a disregard of any form or instruction shall 
 not, of itself, invalidate any list, notice, or other 
 thing." It is true that it results from the appellant's 
 argument, that the overseers might disfranchise a voter 
 through carelessness, or even intentionally; but for 
 wrongful acts of the overseers the Legislature has pre- 
 scribed appropriate penalties. 
 
 Sir H. James, Q.C. {Greenwood with him) was not 
 called upon. 
 
 Lord Coleridge, C.J. I am clearly of opinion that 
 the Eevising Barrister was right. The consequences 
 would be disastrous if we were to yield to the appellant's 
 objection, since it would place it in the power of the 
 
454 MICHAELMAS' SITTINGS. 
 
 1885. 
 
 overseers, by omitting to publish their list of claimants 
 Wells in due time, to disfranchise any number of persons entitled 
 Stanfoeth. to the franchise, although such persons had done every- 
 thing which the Legislature required of them to enable 
 their names to be placed upon the register. Even if the 
 Registration Acts were silent upon this subject, we 
 should require very strong arguments to convince us 
 that the Legislature could have intended to do anything 
 which would lead to such a consequence. But the 
 present matter has been distinctly provided for by the 
 Registration Act, 1843. The 38th section of that Act 
 imperatively requires the Revising Barrister to insert 
 the name of every person omitted from the list of 
 voters, " who shall be proved, to the satisfaction of such 
 barrister, to have given due notice of his claim," and to 
 have been qualified in respect of the qualification de- 
 scribed in the notice of claim. That section of the 
 Act of 1843 is unrepealed, and, therefore, remains in 
 force. Further, there is the 18th section of the Regis- 
 tration Act, 1885, which, while substituting new forms 
 and instructions, says expressly that, "a disregard of 
 any form or instruction shall not, of itself, invalidate 
 any list, notice, or other thing." It is clear both on 
 principle, and in good sense, as well as upon the words 
 of the Registration Acts, that the Revising Barrister 
 was right, and conseciuently this appeal must be dis- 
 missed. 
 
 Gkove and Cave, JJ. concurred. 
 
 Decision affirmed. 
 Solicitors— For appellant, Dubois, Reid & Williams. 
 For respondent, Corbin & Greener. 
 
XLIX VICTORIA. 455 
 
 Daking, Appellant; Fraser, Eespondent. 
 
 1885. 
 A T a Court held by one of the revising barristers, iz — - — 
 
 appointed to revise the list of voters for the borough of p^''^^/^''^^™" 
 Ipswich, the appellant objected to the name of the ^e^f^^s 
 respondent being inserted in the list of voters for the """^^"^ s^o. 24 
 
 / " of the Parlia- 
 
 Said borough. mentary and 
 
 Municipal 
 
 The name of the respondent appeared on the over- Registration 
 
 Act, 1878, of 
 
 seers' list, but was objected to by the appellant. The receiving a 
 Revising Barrister decided the objection to be valid, and under that 
 the name of the respondent was struck from the list. evidence of 
 A declaration under the Registration Act, 1878 (41 deoUred to 
 & 42 Vict. c. 26), for correcting a misdescription in the "* eonditional 
 
 '' ° "^ onthedeclara- 
 
 said list was then handed to the Revising Barrister *i°° being sent 
 
 to the town 
 
 correcting the qualification of the respondent. clerk in due 
 
 time, and, if 
 
 The declaration purported to have been made before not so sent, 
 a justice of the peace on the 7th day of September, Barrister\aa 
 1885, and the indorsement by the town clerk was that receivelt. 
 it had been received by him at noon on the same 
 day. 
 
 It was contended on behalf of the appellant that 
 the date of the declaration, and the indorsement 
 thereon by the town clerk, proved that the declaration 
 was not delivered to the town clerk until the 7th of 
 September, whereas the Seats Act (48 & 49 Vict. 
 c. 23, s. 30) provides that such declaration shall be sent 
 to the town clerk on or before the 5th day of September ; 
 
456 MICHAELMAS SITTINGS. 
 
 1885. and, further, that under 41 & 42 Vict. c. 26, s. 24, the 
 Baking Revising Barrister was only able to give effect to the 
 
 V. 
 
 Frasee. declaration if sent in due time. 
 
 The declaration having been received in time for the 
 Court, the Revising Barrister decided to accept it, and 
 reinserted the name of the respondent in the list 
 according to the corrected qualification set out in the 
 declaration. 
 
 If the Court should be of opinion that the Revising 
 Barrister decided wrongly, the register was to be 
 amended by erasing the name of the respondent. 
 
 Poyser, for the appellant. The decision of the Revising 
 Barrister was wrong. Sec. 24 of the Parliamentary 
 and Municipal Registration Act, 1878, requires the 
 declaration to be duly dated, and to be sent on or before 
 the 12th day of September (for which date by the 
 Redistribution of Seats Act, 1885, the 5th is substi- 
 tuted in the year 1885) to the town clerk, who is 
 forthwith to indorse a memorandum stating the date 
 when he received it. The section then proceeds as 
 follows : — " If the declaration is sent as aforesaid in 
 due time (of which the said indorsement shall be primd 
 facie proof), the Revising Barrister shall receive the 
 declaration as evidence of the facts declared to." Here 
 the declaration was not sent to the town clerk till the 
 7th of September, and consequently the Revising 
 Barrister had no power to receive it in evidence. 
 
 The respondent did not appear. 
 
 Lord CoLEBiDGE, C.J. The decision of the Revising 
 Barrister was clearly wrong, and must be reversed. 
 Sec. 24 of the Parliamentary and Municipal Registra- 
 tion Act, 1878, contains a positive enactment that, if 
 
XLIX VICTORIA. 457 
 
 the declaration is sent in before a certain day — in ttis 1885. 
 year the 5th of September — "the Eevising Barrister Dakinq 
 shall receive the declaration as evidence of the facts Fbaskii. 
 declared to " ; otherwise, he is not to do so. Here the 
 declaration was clearly sent in too late, and conse- 
 quently it ought not to have been received as evidence. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, Gohbold & Woolley, 
 
 for Oobbold Sons & Rouse, Ipswich. 
 
 L L 2 
 
458 
 
 MICHAELMAS SITTINGS. 
 
 Down, Appellant ; Steele, Respondent. 
 
 1885. 
 Nov. 3. 
 
 A, a claimant 
 of the borough 
 franchise for a 
 newly created 
 parliamentary 
 borough, had 
 occupied dur- 
 ing the quali- 
 fying year the 
 two dwelling- 
 houses, in re- 
 spect of which 
 he claimed, in 
 immediate suc- 
 cession, the 
 first at B, the 
 second at S. 
 Before the 
 passing of the 
 Bedistiibution 
 of Seats Act, 
 1885, B and S 
 were both 
 within a 
 county division 
 whichincluded 
 the area of the 
 new borough, 
 but the Seats 
 Act had put 
 B in a new 
 division of the 
 county, and S 
 in the new 
 borough. Held 
 that A's right 
 to be regis- 
 tered as a par- 
 liamentary 
 voter at the 
 first registra- 
 tion after the 
 passing of the 
 Seats Act was 
 preserved by 
 sec. 17, and 
 that his claim 
 to a borough 
 vote was good. 
 
 A T a Court held for the borough of Levnsham before 
 the Revising Barrister appointed to revise the lists 
 of voters for the said borough, Frederick Orimwood 
 claimed (otherwise than as a lodger) to have his name 
 inserted in the lists of Parliamentary voters for the said 
 borough. 
 
 The description in the notice of claim, and in the. 
 published lists of claimants, was as follows : — 
 
 Orim/wood, 
 Frederick. 
 
 28, Dillwyn 
 Road, Lower 
 
 Dwelling-houses 
 in succession. 
 
 29, Tewtref. 
 
 Road, Beckenham, 
 
 and 28, Dillwyn 
 
 Road, Lower 
 
 Sydenham. 
 
 The claim of the said Frederick Gnrawood was in 
 due form opposed in the Revising Barrister's Court by 
 the respondent. 
 
 The following were the facts established :-- 
 
 The claim of the said Frederick Orimwood was in 
 respect of two dwelling-houses, occupied in immediate 
 succession by him as tenant during the twelve calendar 
 months next previous to the 15th of July, 1885, and 
 the said Frederick Grimwood had in fact occupied 
 in immediate succession the two dwelling-houses men- 
 tioned in the fourth column of his said claim as tenant 
 thereof during the whole of the said twelve months. 
 
 The premises described in the said fourth column as 
 
XLIX VICTORIA. 459 
 
 29, Yewtree Road, Beckenham,, were occupied by the 1885. 
 said Frederick Griinnwood from a period anterior to the down 
 15th July, 1884, down to the month of May, 1885 ; and stbble. 
 the premises described as 28, Dillwyn Road, Lower 
 Sydenham, were occupied by him from the said date in 
 1885 until the present time. 
 
 The first-named premises are situate at Beckenham, 
 in the county of Kent. Before the coming into opera- 
 tion of the " Redistribution of Seats Act, 1885," these 
 premises were situate in the then west division of the 
 county of Kent, and conferred on the inhabitant occu- 
 pier thereof as tenant a vote for the said county. 
 
 The last-named premises are situate at Lower 
 Sydenham, in the county of Kent. Before the coming 
 into operation of the " Redistribution of Seats Act, 
 1885," these premises also were situate within the said 
 then west division of the said county, and conferred on 
 the inhabitant occupier thereof as tenant a vote for the 
 said county. 
 
 Upon the coining into operation of the "Redistribution 
 of Seats Act, 1885," the said first-named premises 
 became included in the new western or Sevenoaks 
 division of the said county, but did not become included 
 within the area of any borough. 
 
 Upon the coming into operation of the said Act, the 
 said last-named premises became included within the 
 area of the parliamentary borough of Levdsham, which 
 borough was first created by the said Act. 
 
 It was contended in support of the claim inter alia 
 that a person had a right to a vote for the borough 
 of Lewisham in respect of immediate succession from a 
 dwelling-house, which was formerly in the west division 
 of the county of Kent, and now is in the Sevenoaks or 
 western division of the said county, to a dwelling-house 
 
V. 
 
 Steele. 
 
 460' MICHAELMAS SITTINGS. 
 
 1885. which was formerly in the said west division, and now is 
 ^^j)o^^ in the borough of Lewisham. 
 
 The Revising Barrister decided against the said con- 
 tention, and rejected the claim of the said Frederick 
 Grimwood to a vote for the said borough. Notice of 
 appeal was duly given, and the appeals of several other 
 persons similar situated were consolidated with that of 
 the said Frederick Grimwood. 
 
 J. C. Carter for the appellant. The question here 
 depends on sec. 17 of the Redistribution of Seats Act, 
 1885. The appellant contends that he is qualified for the 
 newly created borough of Lewisham, his qualification 
 consisting of two dwelling-houses, occupied in succession. 
 Before the Seats Act both dwelling-houses were in West 
 Kent, but the Seats Act has changed the parliamentary 
 area in which each of them was previously situated — the 
 first to the Sevenoaks division of Kent, the second to the 
 newly created borough of Lewisham. The words in 
 the latter part of the second branch of sec. 17, on which 
 the question turns, are as follows : " Where the area of 
 the constituency of which such place before such change 
 formed part becomes,- after such change, part of two or 
 more constituencies, each of such two or more con- 
 stituencies shall, for the purposes of this section, be 
 deemed to have included the whole of the said area." 
 The appellant's contention is that, for the purposes of 
 this section, the SevenoaJcs division of Kent and the 
 borough of Lewisham are each to be deemed to have 
 included the whole of West Kent. The section in ques- 
 tion is only operative for one year, so as to prevent the 
 confusion which would otherwise arise from the altera- 
 tion of areas by the passing of the Seats Act. In 
 strictness of language there may be a difficulty in 
 
Steele. 
 
 XLIX VICTORIA. 461 
 
 saying that by the operation of sec. 17, West Kevi 1885. 
 "becomes part of" these two new constituencies ; but '^^ 
 the words "becomes part of" may, it is submitted, g^^, 
 without much violation of language, be construed as 
 though the words were " is parted into," and, if so, the 
 diflScuIty disappears. It was evidently the object of 
 sec. 17 to prevent the disfranchisement of the voter 
 which would otherwise arise from the areas of con- 
 stituencies being altered — a disfranchisement of which 
 the voter would have had no previous notice. The 
 appellant's construction gives effect to the object of 
 preventing disfranchisement, while any other construc- 
 tion must not merely disfranchise, but disfranchise those 
 who could have had no means of guarding against it. 
 A precedent in favour of the appellant's contention 
 is to be found in the proviso at the end of sec. 31 
 of the Reform Act. That proviso had reference to 
 boroughs which were counties in themselves. Its object 
 was to confer the borough instead of the county fran- 
 chise upon owners of freehold or burgage tenements, 
 which, though situate outside the borough limits when 
 the Eeform Act was passed, were meant to be brought 
 within such limits by the subsequent Boundaries Act. 
 The effect of that proviso was to preserve the franchise, 
 but to transfer the voter from the county to the borough. 
 Here, under the Representation of the People Act, 1884, 
 the appellant would clearly have had a good county vote 
 if the Seats Act had not been passed. If the appellant's 
 construction of sec. 17 of the Seats Act be not sustained, 
 the effect must be entirely to disfranchise him. 
 
 Bompas, Q.C., for the respondent. The construc- 
 tion, for which the appellant contends, would, if adopted 
 create a great anomaly in election law, since the effect 
 
462 - MICHAELMAS SITTINGS. 
 
 1885. would be that a qualification by successive occupation 
 Down would, in a large number of cases, confer several votes/ 
 Smle. Thus the appellant here would have a right to be 
 registered not only for the parliamentary borough of 
 Zewisham, but also for the Sevenoaks division of Kent. 
 That necessarily follows from the proposition which has 
 been contended for by the appellant — viz., that each of 
 these new areas is "to be deemed to have included the 
 whole" of West Kent. The real object of sec. 17 was, it 
 it is submitted, to meet the case of merged boroughs, 
 which, by virtue of the Seats Act, had ceased, as 
 boroughs, to return members. 
 
 [Cave, J. Surely sec. 17 cannot be so restricted ?] 
 
 The object which that section had in view was to 
 preserve the rights of those who had made no change in 
 the subject of their occupation. The words upon which 
 the question turns are, " shall for the purpose of this 
 section," not "shall for the purposes of successive occu- 
 pation," " be deemed to have included the whole of the 
 said area.'' 
 
 [Cave, J. Where a borough is merged in the 
 county, a claimant gets his vote under the first branch 
 of sec. 17, and the second branch is not required.] 
 
 The appellant's is, it is submitted, a strained con- 
 struction of the Act of Parliament, which the Court 
 will hesitate to adopt. Bead literally, it involves an 
 absurdity, for a constituency cannot become part of the 
 parts which are comprised within it. 
 
 Carter replied. 
 
▼•I 
 
 Steele, 
 
 XLIX VICTORIA. 463 
 
 Lord Coleridge, C.J. I do not doubt that there is 1885. 
 some difficulty in construing this section, for my ■dowk 
 brother Ch^ove says that he feels it; but, looking at 
 what was obviously the intention of the Legislature— 
 viz., that in cases like the present the rights of voters 
 should be preserved, I certainly think that the view 
 taken by my brother Gave and myself is a reasonable 
 one. "We know that the Franchise Act of 1884 was 
 passed in the year preceding the Redistribution of 
 Seats Act ; and although we also know, as matter of 
 history, that at the time when the Franchise Act was 
 passed there had been some kind of arrangement that 
 the Seats Act should be passed in the following year, 
 yet the actual result was that, while a number of 
 persons had had the right of acquiring the franchise 
 conferred upon them by the former Act, it was un- 
 known, except in a very general way, what the provisions 
 of the Seats Act would be. If the Seats Act had not 
 been passed, the appellant and the other persons in 
 the schedule would have acquired the right to vote 
 under the Franchise Act. In this state of things the 
 Redistribution of Seats Act was passed, altering the 
 area of almost every county constituency; and, if no 
 provision had been made to meet the consequences of 
 this change of area, the result might have followed that, 
 by the effect of legislation, of which the terms were 
 previously unknown, a number of persons would have 
 been deprived of the franchise whom the Legislature 
 had considered fit to exercise it, and upon whom the 
 right of acquiring it had actually been conferred. 
 Accordingly, we find the l7th section making pro- 
 sion that where by that Act the area of a constituency 
 is changed — inasmuch as the change takes place 
 without the knowledge of the voter, or the oppor- 
 
464 MICHAELMAS SITTINGS. 
 
 1885. 
 
 tunity being afiforded to him of guarding against 
 Down its effects -the law applicable to successive occu- 
 Stbele. pation which requires the subjects of occupation 
 to be situated within the same area, should, for 
 the first year, be suspended in those cases where, 
 but for the alteration of area, the circumstances were 
 such that the vote would have been obtained. That 
 was surely a reasonable and proper thing for Parlia- 
 ment to enact. Moreover, the language employed 
 does not appear to me very inexact for the purpose of 
 carrying out the intention of the Legislature ; and, 
 although I agree that it is not very happily chosen, I' 
 think it, at all events, sufficiently explicit to enable us 
 to give effect to what the Legislature intended. 
 
 The decision of the Revising Barrister was, in my 
 judgment, wrong, and must be reversed. 
 
 Grove, J. I do not dissent, though I confess to 
 feeling some doubt, not because I can put a construc- 
 tion on the section which gives a better effect to it, but 
 because its language does not appear to me consistent 
 with the construction which is being placed upon it. 
 The difficulty which I feel is that an area cannot 
 become part of the parts which are contained within it; 
 in other words, the whole cannot become a part of its 
 parts. I admit, however, that, if this view were to 
 prevail, it would defeat the operation of the Act in 
 cases where it was intended to apply, and, yielding to 
 the view which my learned brothers entertain, I do 
 not dissent from their judgment. 
 
 Cave, J. I agree with my lord's judgment for the 
 reasons which he has stated. Although the language 
 employed is not the best which might have been chosen, 
 I am unable to see what other reasonable interpretation 
 could be placed upon it. It is clear that the operation of 
 
XLIX VICTOEIA. 465 
 
 the section cannot be confined to boroughs. The words 1885. 
 of the first branch of it are evidently such as to include Down 
 counties and boroughs equally, and there is nothing in Steele. 
 the second branch which can restrict them to boroughs. 
 The words, "where the area of the constituency of 
 which such place before such change formed part 
 becomes, after such change, part of two or more con- 
 stituencies," are distinctly satisfied where by a change 
 of area part of an old constituency becomes part of a 
 new one. This must occur in many cases. It would 
 be a strange result if, while every such case is within 
 the section, the present case were excluded from it. 
 
 Decision reversed. 
 
 Solicitors — For Appellant, Newton & Down, 
 Lewisham. 
 
 For Respondent, B. Dennis. 
 
4(:g 
 
 MICHAELMAS SITTINGS. 
 
 IN THE COUKT OF APPEAL. 
 FosKETT, Appellant; Kaufman, Eespondent (a). 
 
 1885. 
 Nov. 5. 
 
 The power 
 of amendment 
 given by sec. 
 28 of 41 & 42 
 Vict. c. 26, 
 8ub-B. 1, is, in 
 the absence of 
 a declaration 
 under sec. 24, 
 restricted by 
 sub-B. 13 to 
 cases which in- 
 volve no alter- 
 ation of the 
 description of 
 the nature of 
 qualification. 
 
 A PPEAL from the Queen's Bench Division (Lord 
 Coleridge, C.J., and Orove, J., dissentiente Cave, J.), 
 affirming the decision of the Revising Barrister for the 
 Whitechapel division of the borough of Tower Hamlets. 
 The name of the appellant, Henry Foskett, appeared 
 in Form E for the hamlet of Mile End New Town of 
 the list of parliamentary voters as the occupier of a 
 dwelliiig-house, and the entry and description on the 
 said list were as follows : — 
 
 Name of Voter. 
 
 Place of 
 Abode. 
 
 Nature of 
 Qualification. 
 
 Name and 
 Situation of 
 Qualifying Pro- 
 perty. 
 
 Foskett, Hewry. 
 
 5, Victoria 
 Cottages. 
 
 Dwelling-house 
 
 6, Victoria 
 Cottages. 
 
 The respondent duly objected to the name of the 
 appellant being retained on the list of voters for the 
 said division of the said borough, upon the ground 
 that the appellant had not been in occupation of the 
 premises as described therein for the period required by 
 law to give him a vote. 
 
 The following facts were proved : — 
 
 The appellant had occupied in the borough, during 
 (a) Reported by J. J. H. Saint, Esq. 
 
XLIX VICTORIA. 467 
 
 the whole of the qualifying period, two dwelling-houses 1885. 
 
 in immediate succession, namely. High Street, Wap- Foskett 
 
 ping, and the said 5, Victoria Cottages, and such his kadfIbaii. 
 
 occupation of those two dwelling-houses would have 
 
 given him a complete qualification if in addition to his 
 
 name and place of abode, as above stated, the nature 
 
 of the qualification had in the third column of the said 
 
 list been described as " dwelling-houses in succession," 
 
 and the name and situation of the qualifying property 
 
 had been described in the fourth column as " High 
 
 Street, Wapping, and 5, Victoria Cottages." 
 
 The name of the appellant did not appear upon the 
 register of voters in force for the year 1885 for any 
 qualification, and it appeared that his name had been 
 inserted by the overseers in the list in the manner 
 above-mentioned, because they had obtained from the 
 person rated, or liable to be rated, in respect of the 
 premises, 5, Victoria Cottages, a return, according to 
 Form [A] of the General Forms to Schedule 3 of the 
 Registration Act, 1885, in which it was by mistake 
 stated that the appellant was on the loth of July, 1884, 
 and had been up to the date of the return, an inhabitant 
 occupier of the dwelling-house, 5, Victoria Cottages, 
 and the appellant had been found by the overseers to 
 be inhabiting that dwelling-house at the date of the 
 inquiries made by them, pursuant to the provisions of 
 the Act, and his name had been placed, and still 
 remained, upon their rate-book in consequence of the 
 said return. 
 
 It was urged on behalf of the appellant that under 
 these circumstances the Revising Barrister ought to 
 amend the third column of the list by altering " dwelling- 
 house" to "dwelling-houses in succession," and the 
 fourth column by altering " 5, Victoria Cottages " to 
 
468 MICHAELMAS SITTINGS. 
 
 1885. "High Street, Wapping, and 5, Victoria Cottages," 
 FosKETT upon the authority of the cases of Hitchins v. Brown (a) 
 Kauf'mah. and Ford v. Hoar (6). 
 
 The Revising Barrister decided that neither of these 
 cases applied, and that he was bound by the case of 
 Porrett v. Lord (c), and he expunged the name of the 
 appellant from the said list. 
 
 The name of one other person whose name and quali- 
 fication was set out in the schedule attached to the 
 special case was objected to under similar circumstances, 
 and his name was also expunged from the said list. 
 
 If the Court should be of opinion that the decision 
 was wrong, the register was to be amended by inserting 
 the name of the appellant and the name of the said one 
 other person in the said list. 
 
 Willis, Q.C. {Markwick with him), for the appellant. 
 It is clear on authority that the description of qualifi- 
 cation in the third column would be free from objec- 
 tion if the fourth column had been complete — Hitchins 
 V. Brown (a). The question is, whether the Revising 
 Barrister had power to amend the fourth column by 
 supplying what was needed to complete the local 
 description of the voter's qualification, viz., "High 
 Street, Wapping." In refusing to make such amend- 
 ment, the Revising Barrister acted on the authority of 
 Porrett v. Lord (c), which was based on the earlier 
 case of Bartlett v. Oibhs (d), a case, it is submitted, 
 which was wrongly decided. The decision in Bartlett 
 V. Gibbs (d) turned on the power of amendment given 
 to the Revising Barrister by sec. 40 of 6 & 7 Vict. c. 18, 
 
 (a) 1 Lviw. 328 ; S. C. 2 0. B. (c) Ante, p. 46 ; S. C. L. R. 5 0. 
 
 25. P. D. 65. 
 
 (6) Ante, p. 351 ; S. C. L. R. (d) 1 iMw. 73 ; S. C. h M. 
 
 UQ.B. D. 507. & G. 81. 
 
FOSKETT 
 V. 
 
 Kath'man. 
 
 XLIX VICTORIA. 469 
 
 and the mistake which the Court there made was in 1885. 
 considering that sec. 28 of the Reform Act, 1832, 
 gave a different franchise from that conferred by sec. 
 27 of the same Act. But, however that may be, sec. 
 40 of 6 & 7 Vict. c. 18 was repealed by the Regis- 
 tration Act, 1885, and consequently the present case 
 depends on the construction of sec. 28 of the 
 Parliamentary and Municipal Registration Act, 1878, 
 which has been substituted for sec. 40 of the earlier 
 Act. Sec. 28 (sub-sec. 1) of the Parliamentary 
 and Municipal Registration Act, 1878, enacts that the 
 Revising Barrister " shall correct any mistake which is 
 proved to him to have been made in any list." The 
 power of amendment thus given was held in Ford v. 
 Hoar (a,) not to be limited by sub-sec. 13 of the 
 same section. It was the duty, therefore, of the 
 Revising Barrister here to have made the required 
 amendment. By so doing he would not have changed 
 the description of the voter's qualification, which was 
 correctly stated in the third column of the list, but 
 would simply have more clearly and accurately defined 
 it by supplying the local description of it in the fourth 
 column. 
 
 The intention of the Legislature to give larger 
 powers of amendment to Revising Barristers is indicated 
 by sec. 24 of the Parliamentary and Municipal Registra- 
 tion Act, 1878, which enacts that " any person who is 
 entered on any list of voters for a parliamentary 
 boi-ough, or any burgess list, subject to revision under 
 this Act, for a municipal borough, and whose name 
 or place of abode or the nature of whose qualification, 
 or the name or situation of whose qualifying property 
 is not correctly stated in such list, or in respect of whom 
 (a) Ante, p. 351 ; S. C. L. R. 14 Q. B. D. 507. 
 
470 MICHAELMAS SITTINGS. 
 
 1885. there is any other error or omission in the said list, 
 
 FosKBTi may, whether he has received a notice of objection or 
 
 Kaufmam. not, if he thinks fit, make and subscribe a declaration 
 
 in the form' in that behalf in the schedule to this Act, 
 
 or as near thereto as the circumstances will admit, 
 
 before any justice of the peace, &c." 
 
 The Form there referred to is Form M, which gives an 
 example of a voter's qualification is respect of a " house, 
 24, Shire Lane," being wrongly described in the list as 
 " shop, 2, Shire Lane." Such erroneous description the 
 Revising Barrister was empowered to amend by 
 means of the prescribed declaration. 
 
 [BowEN, L.J. This declaration is only to be used 
 in evidence. How, then, can it enlarge the power of 
 amendment ?] 
 
 If the Revising Barrister has no power to correct 
 the mistake evidenced by the declaration, the declara- 
 tion would be to no purpose, and the Legislature would 
 hardly have enacted it. " Shop " and " house " are two 
 distinct qualifications, and the form of declaration 
 substituting " house " for " shop " authorises a change 
 in the " nature of the qualification." But the section 
 which gives the power to amend is no doubt sec. 28. 
 The power of amendment there given by sub-sec. 1 is 
 general, and not restricted by the limitation contained 
 in sub-sec. 13. Sub-sec. 13 commences with the words 
 " except as herein provided " — very different words 
 from those employed in sec. 40 of 6 & 7 Vict. c. 18 — 
 and the exception does not refer only to the preceding 
 sub-sec, viz., sub-sec. 12, as will probably be contended 
 for the respondent, but to the whole section; Ford v. 
 Hoar (a). 
 
 (a) Ante, p. 851 ; S.C.L.R, 14 Q. B. D. 507. 
 
XLTX VICTORIA. 471 
 
 [Lord EsHER, M.E. The words, "except as herein 1885. 
 provided," leave sub-sec. 12 in full force.] Foskbtt 
 
 They leave all the sub-sections in full force. ItPorrett 
 V. Lord (a) was rightly decided, the power of amend- 
 ment given by sec. 28 is useless to aid sec. 24 — at all 
 events, where there has been a change of qualification, 
 since Porrett v. Lord (a) decides that sec. 24 does not 
 apply to a change of qualification. 
 
 [Lord EsHEE, M.R. Your construction of see. 28 
 would make the restrictions in sub-sec. 13 inapplicable 
 in any case.] 
 
 It may be that they apply to claims, though not to 
 the list of voters made out by the overseers. A dis- 
 tinction may well exist between correcting a mistake 
 in a claim and in a list of voters, for whereas in the 
 former case the erroneous entry would probably be 
 wilful or intentional, in the latter it would be merely 
 accidental, for which the voter ought not to suffer. 
 
 [Lord ESHEE, M.R. It may be that the power of 
 amending the qualification exists only where there is a 
 declaration pursuant to sec. 24.] 
 
 There is no power enabling the Revising Barrister 
 to act on the evidence supplied by the declaration 
 pursuant to sec. 24, unless the power of amendment, 
 under sec. 28, is what the appellant contends for. The 
 construction put upon sec. 28 by the majority of the 
 Court in Ford v. Hoar (b) was, it is submitted, right, 
 and, if so, the Revising Barrister was wrong in refusing 
 to amend. 
 
 la) Ante, p. 46 ; S. 0. L. S. 5, (6) Ante, p. 351 ; S. 0. L. R., 
 
 a P. D. 65. 14 Q. B. D. 507. 
 
 V. 
 
472 MICHAELMAS SITTINGS. 
 
 1885. Grantham, Q.C., for the respondent. The Eevising 
 
 FoaKBTT Barrister had no power to amend in this case. The 
 KAxnr'uAN proposed amendment would have involved a change in 
 the nature of the qualification which the Legislature 
 has expressly prohibited. The sort of mistake referred 
 to in sub-sec. 1 of sec. 28 of the Parliamentary and 
 Municipal Registration Act, 1878, is the same as that 
 which the Revising Barrister was empowered to amend 
 under sec. 40 of 6 & 7 Vict. c. 18. Its nature was 
 explained by Tindal, C.J., in Wood v. Willesden (a), 
 when, referring to the Revising Barrister's power under 
 sec. 40 to " correct any mistake which shall be proved to 
 him to have been made in any list," the learned judge 
 observed that by the word "mistake" was to be under- 
 stood " any slight and unimportant blunder, by which no 
 person could have been misled, and by the correction of 
 •which no person could be prejudiced." Again in Bendle 
 V. Watson (h) where, in consequence of a change in the 
 number of the street door of the house, the number of 
 the house was erroneously inserted in the list, it was held 
 that the Revising Barrister was empowered by sec. 40 of 
 6 & 7 Vict, c. 18, to amend the description by substitut- 
 ing the new number for the old one, because the qualifica- 
 tion itself remained unaltered. Brett, J., in his judgment 
 in that case said, " If the description be so inaccurate as 
 that, if the change be made, the description becomes 
 one of a different qualification, it cannot be said that 
 the change is merely for the purpose of more clearly and 
 accurately defining the same, but if the description be 
 really an insufficient description of a qualification which, 
 after the change of description, remains the same quali- 
 fication, then the amendment may be made." In 
 
 (o) 2 C. B. 21. (6) 1 Bopw. A Colt. 591 ; S C 
 
 L. R. 7 C. P. 163, 171. 
 
XLIX VICTORIA. 473 
 
 Hitchvns V. Brown (a) the amendment was not an 1885, 
 alteration of the qualification. That case does not Fobkett 
 conflict with Bartlett v. Gibhs (b) ; on the contrary, the kaufmak. 
 Court in Hitchins v. Brown {a) expressly recognised 
 Bartlett v. Gibbs (b) as having been rightly decided, 
 and they distinguished it from Hitchins v. Brown (a). 
 The amendment here involves the substitution of one 
 qualification for another, which cannot be done. The 
 power of amendment by means of the declaration 
 enacted by sec. 24 of the Parliamentary and Municipal 
 Eegistration Act, 1878, is to be understood subject to 
 the restraint imposed thereon hy sub. sec. 13 of sect. 28, 
 If that sub-section does not apply here, there is no case to 
 which it can apply. It is, therefore, submitted that the 
 Revising Barrister was right, and that he had no power 
 to make the proposed amendment, 
 
 Willis, Q.C., replied. 
 
 Lord EsHER, M.E. In this case there was a list of 
 voters, a list, therefore, which had to be revised. In that 
 list the name of the appellant appeared ; the nature of 
 his qualification was described in the third column as 
 " dwelling house," and the local description of it in the 
 fourth column' was "5, Victoria Cottages," — there is 
 nothing in the list about " houses in succession," nor are 
 two houses named. No declaration was sent in under sec. 
 24 of 41 & 42 Vict., c. 26, but, when before the Revising 
 Barrister, the voter proved that during the qualifying 
 period he had occupied in immediate succession two 
 dwelling-houses, the house described in the list, and 
 another previously occupied, so that if the Revising 
 
 (a) 1 Lutw. 328 ; S. C. 2 0. B. (6) 1 Lwtw. 73 ; 5. C. 5 M. <fc 0. 
 
 25. 81. 
 
 HM 2 
 
474 Michaelmas sittings. 
 
 1885. Ban-ister had the power to amend, he had the materials 
 PosKETT for doing so. 
 
 Kacfman. The power of the Eevising Barrister to amend is statu- 
 tory, and is now contained in the Parliamentary and 
 Municipal Registration Act, 1878. On behalf of the 
 appellant it was argued that, his qualification being 
 described in the list as " dwelling house," the description 
 was right, and did not require amendment. It is true 
 that the appellant's qualification was described in the 
 list as " dwelling house," but the dwelling house there 
 described was the dwelling house mentioned in the 
 fourth column, viz. : " 4, Victoria Oottages." 
 
 Could the appellant then prove that qualification 1 
 Obviously he could not — because he had not occupied 
 that house for the requisite period. The appellantj 
 therefore, could not maintain his right to be registered 
 in respect of the qualification described in the list. 
 Consequently he proposed to amend, and for this purposje 
 proved that he had occupied two houses in immediate 
 succession. Then is that a different qualification from 
 that which arises from occupying one house for twelve 
 months ? I think it clearly is. The two qualifications 
 are described in ss. 27 & 28 of the Reform Act, 1832. 
 In sec. 27 there is a qualification in respect of the 
 occupation of a house for twelve months ; in sec. 28 in 
 respect of the occupation of two houses in immediate 
 succession, neither of them for twelve months, but of 
 the two together for that period. I think that this 
 is sufficiently clear independently of authority, but 
 Bartlett v. Gibbs (a) is a distinct authority that the 
 qualifications are distinct. That decision has been 
 acted on ever since, and Parliament, with a full 
 knowledge that that construction had been put upon 
 (o) 1 Lutw. 73 ; S. C.5 M. lb G. 81. 
 
XLIX VIOTOEIA. 475 
 
 the Reform Act, 1832, has made no alteration in regard 1885. 
 to it. I think it would be contrary to every rule of Foskett 
 construction by which we are in the habit of being kaotman. 
 guided, if under these circumstances we were to upset 
 what has so long been held to be the true construction 
 of this Act of Parliament. 
 
 The question then is, can the description of the appel- 
 lant's qualification be amended by the insertion of the 
 additional house ? That depends upon the power of 
 the Revising Barrister, which is now given by the 28th 
 section of 41 & 42 Vict. c. 26, and we must consider what 
 is the true construction of that section. In construing 
 that section we must bear in mind that the 40th section 
 of 6 & 7 Vict. c. 18, was known to Parliament when 41 & 
 42 Vict. c. 26, was passed. The existence, therefore, of 
 the 40th section of 6 & 7 Vict. c. 18, must be taken 
 into account in construing section 28 of the Act of 1878. 
 
 Now this sec. 28 enacts that " a Revising Barrister 
 shall with respect to the lists of voters for a parlia- 
 mentary borough and the burgess lists for a municipal 
 borough which he is appointed to revise, perform the 
 duties, and have the powers following." And then the 
 first sub-section says, "He shall correct any mistake 
 which is proved to him to have been made in any 
 list." In the present case there was an erroneous de- 
 scription of the qualification, which was " a mistake " 
 within the meaning of sub-sec. 1. The barrister had, 
 therefore, power to amend unless that power is limited. 
 If that sub-section had stood alone it is clear that the 
 Revising Barrister would have had the power, his power 
 to correct a mistake being as unlimited as it would 
 have been under sec. 40 of 6 & 7 Vict. c. 18, if the first 
 part of that section had stood alone and there had been 
 no proviso. Then, is this power limited, and can the 
 
476 
 
 MICHAKLMAS SITTINGS. 
 
 1885. 
 
 FOSKKTT 
 V. 
 
 Kacjuam. 
 
 barrister, although he may amend some mistakes, 
 amend all, or, at all events, can he amend the mistake 
 •which has been here made ? It was said on the one 
 side that the power to amend such a mistake is taken 
 away by the 13th sub-section ; on the other side that ib 
 was not, and that the 13th sub-section does not limit 
 the power of amendment. In construing sec. 40 of 
 6 & 7 Vict. c. 18, it was rightly held that, by reason of 
 the proviso, an error of this kind could not be amended, 
 because, although the earlier part of that section gave 
 the power to amend, yet where the mistake was in the 
 description of the qualification, the proviso took away 
 the power, and there could be no amendment. Then, 
 has sec. 28, sub-sec. 13, of the Act of 1878 the same 
 effect ? It is not in terms a proviso, the words being 
 " except as herein provided." On behalf of the appel- 
 lant it was said that these words leave to sub-sec. 1 its 
 full effect. If so, the subsequent part of sub-sec. 13 is 
 rendered entirely useless. Then it was suggested that 
 the word " mistake " in sub-sec. 1 only meant a mistake 
 which was not wilful, and that sub-sec. 13 would only 
 take away the power of amending a wilful mistake. 
 This appears to me an Unreasonable interpretation. 
 If possible, we must so interpret the Act as to give 
 reasonable effect to its provisions. Can, then, a reason- 
 able interpretation be given to the words " except as 
 herein provided ? " I think it can. Under the law as 
 it existed prior to the passing of the Parliamentary 
 and Municipal Eegistration Act, 1878, a voter, the 
 nature of whose qualification was misdescribed in the 
 overseers' list, had no means of getting the error cor- 
 rected in such list. His only course was to make a 
 new claim. Thereupon his name would be expunged 
 from the overseers' list, because that could not be 
 
XLIX VICTORIA. 477 
 
 amended, but he would be placed on the register with 1886. 
 the description of his qualification amended according Foskbtt 
 to the claim. Now, sec. 24 of the Act of 1S78 seems Kaufman. 
 to me to give a double relief to the voter, the nature of 
 whose qualification has been misdescribed in the over- 
 seers' list. It extends the time for remedying the 
 misdescription in the list beyond that allowed in the 
 case of a new claim, and it gives to the voter the means 
 of substantiating the correction without the necessity 
 of his personal attendance before the Revising Bar- 
 rister. Form M in the schedule assumes that the 
 voter can make a declaration that his qualification is 
 a different one from that which is described in the list, 
 and, construing sec. 24 by the light thrown on it by 
 that form, I think there are words which enable him to 
 do so. In my opinion, sec. 24 enables the voter in 
 effect to make a new claim, with additional facilities 
 for proving it. Then, if that be so, sub-sec. 13 would 
 have struck out this power, were it not for the words 
 at the beginning, " Except as herein provided." These 
 words save to the voter the rights given to him by 
 sec. 24, and so have a very important effect ; but I 
 think the exception cannot be carried further, and that 
 it must be limited to saving the rights under sec. 24 
 and possibly those under sub-sec. 12, and that it cannot 
 have the effect of making absolute the words in sub- 
 sec. 1. Therefore the effect is as if the words had been 
 " Provided always and except as herein provided." If 
 the voter acts under sec. 24, then the Revising Barrister 
 can alter the overseers' list according to the declara- 
 tion ; but if the voter, instead of availing himself of 
 the provisions of sec. 24, waits until the holding of the 
 Revision Court and then goes before the Revising Bar- 
 rister and claims to have the description of the nature 
 
'i78 MICHAELMAS SITTINGS. 
 
 1885. of the qualification altered from that which appears on 
 j-osKETT the list, then the Revising Barrister has no more power 
 Kadfman, t^ow than he had before to make such alteration. 
 
 The reason why the proviso in sec. 40 of the Act of 
 1843 was inserted was, that the voter might not have 
 an unfair advantage over the objector, because, if there 
 were no such proviso, and if at the Revision Court a 
 person should claim to have the description of his 
 qualification altered to something different from that 
 which appears on the list, the objector would be taken 
 by surprise, and would have no reasonable opportunity 
 of supporting his objection, or of making previous in- 
 quiry as to whether his objection were valid or not. 
 But now, if the voter makes a declaration under sec. 24 
 of the Parliamentary and Municipal Registration Act, 
 1878, the same reasoning does not apply, inasmuch as 
 the declaration must be sent to the clerk of the peace 
 or the town clerk, as the case may be, some days 
 previous to the holding of the Revision Court, and the 
 objector has the power of seeing the declaration, and 
 the opportunity of ascertaining whether the new de- 
 scription of qualification contained therein be true or 
 not. In such a case it cannot be alleged that the 
 objector is taken by surprise, and there is good reason 
 why, with such safeguards, the power of the Revising 
 Barrister should not be limited. This seems to me to 
 be the true interpretation of the Act, and, if so, then, 
 as there was no declaration in this case, it follows that 
 the Revising Barrister had no power to amend. I am 
 aware that the decision in Porrett v. Lord (a) is incon- 
 sistent with the reasons of our present decision, and I 
 therefore think it right to say that in my judgment the 
 decision in Porrett v. Lord (a) was too strict an inter- 
 (o) Ante, p. 46 -,8.0.5 C. P. D. 65. 
 
XLIX VICTORIA. 479 
 
 pretation of the statute, and that I am unable to agree 1885. 
 with it. ^ ■ 
 
 FOSKETT 
 
 It follows from what I have said that, in my opinion, kaopman. 
 the Eevising Barrister had no power to amend here, 
 and therefore that his decision must be affirmed. 
 
 Cotton, L. J. What the Revising Barrister was asked 
 to do here was to insert the words "in immediate 
 succession" in the third column, and to make the 
 requisite addition in the fourth column by putting in 
 " High Street, Wapping." The Revising Barrister held 
 that he had no power to make the amendment asked 
 for, and the question is whether he had the power. 
 That question depends on the true construction of 
 •sec. 28, sub-s. 13, of the Parliamentary and Municipal 
 Registration Act, 1878. That sub-section is divided 
 into two parts. The first part limits the power of the 
 Revising Barrister as to the reception of evidence by 
 excluding evidence of any other qualification than that 
 stated in the list or claim : the second part limits the 
 barrister's power of amendment by prohibiting the 
 exercise of that power, except for the purpose of more 
 clearly and accurately defining the qualification. But 
 for the words " except as herein provided " at the com- 
 mencement of sub-s. 13, it is clear that the Revising 
 Barrister could not receive any evidence of a qualifi- 
 cation other than that mentioned in the list, nor could 
 he make such an amendment as was here asked for. 
 According, however, to the argument of Mr. WUlis, the 
 Revising Barrister's power of amendment, regard being 
 had to sub-sees. 1 and 2, is practically unlimited, the 
 only restriction on such power being, as Mr. Willis con- 
 tended, in cases when the error is not the result of a 
 mistake. But I do not think that this can be the 
 
480 MICHAELMAS SITTINGS. 
 
 1885. meaning of the statute. It can hardly be supposed 
 FosKETT that the legislature contemplated the overseer making 
 Kaufman, an error in the list intentionally, and we must therefore 
 see if the words " except as herein provided " cannot be 
 referred to some enactment other than sub-sees. 1 and 
 2. It is material to observe that, whereas sub-sees. 1 
 and 2 only refer to the power of amendment, and not 
 to that of receiving evidence, the 13th sub-sec. refers to 
 and restricts both powers. Now whether the words 
 " except as herein provided " do, or do not, refer to 
 sub-sec. 12, they do refer, in my opinion, to sec. 24, 
 which enables the voter by means of a declaration to 
 get the description of his qualification amended, 
 irrespective of the question whether such qualification 
 be a different one or not from that described in the list. 
 Before the Act of 1878 he could only obtain the 
 amendment of the description of his qualification by 
 means of a new claim sent in at an earlier date than 
 that prescribed for the declaration. Not only does 
 sec. 24 enable the voter to send in such declaration, but 
 it makes the declaration evidence before the Revising 
 Barrister of the facts stated therein, and thus the 
 declaration may show that another and different 
 qualification ought to be stated as the qualification 
 of the voter. That declaration is required to be 
 open to public inspection at the times specified 
 in the section, so that its truth can be inquired 
 into, and, if necessary, an objection can be raised. 
 In my opinion this 24th section is distinctly 
 referred to in sec. 28, sub-sec. 13, by the words 
 "except as herein provided," because what imme- 
 diately follows those words is "no evidence shall be 
 given of any other qualification than that which is 
 described in the list," and sec. 24 expressly makes the 
 
XLIX VICTORIA. 481 
 
 declaration evidence of the facts declared to, which may 1885. 
 be of another qualification. Foskbtt 
 
 But it was also said that sec. 24 says nothing about kaufman. 
 any alteration or amendment being made in the list. 
 That is true. Neither sec. 24 nor sec. 28 gives any 
 express power to the Revising Barrister to alter or 
 amend the list by the declaration ; but as sec. 24 ex- 
 pressly enables a declaration to be sent in referring to 
 another and a different qualification, and as sec. 28 
 gives a general power to the Revising Barrister to 
 correct mistakes, we must consider that power is im- 
 pliedly given to the Revising Barrister to amend the 
 list in respect of matters concerning which sec. 24 has 
 directed him to receive evidence. So, therefore, we 
 have in sec. 24 that to which the words "except as 
 herein provided" in sub-s. 13 will apply. Possibly 
 these words may also apply to sub-s. 12, but whether 
 that be so or not, in my opinion they at any rate 
 apply to sec. 24. 
 
 It is true that this exception is not introduced in 
 the terms of a proviso to the power given by sub-sees. 
 1 and 2. Sec. 28 is divided into several sub-sections, 
 and sub-s. 13, which might have interfered with sec. 24, 
 is introduced as a substantive enactment, and not by 
 way of proviso, so that whilst practically interfering to 
 some extent with what would otherwise be the effect 
 of sub-sees. 1 and 2, it does not interfere with the pro- 
 visions of sec. 24. 
 
 I quite agree with what the Master of the Rolls has 
 said as to Porrett v. Lord (a). In that case, although 
 there was a declaration under sec. 24 for the correc- 
 tion of a misdescription of the nature of the qualifica- 
 tion as stated in the list, the Court decided that the 
 
 (a) Ante, p. i6 ; S. C. B C. P. D. 66. 
 
482 MICHAELMAS SITTINGS. 
 
 1885. Revising Barrister was right in holding that he had no 
 FosKETT power to amend. In my opinion the Court in so 
 Kadp'man. deciding came to an erroneous conclusion. 
 
 . The restriction on the power of amendment imposed 
 by sub-s. 13 is that no qualification can be inserted 
 which is different from that described in the list. Is 
 this, then, a different qualification from that described 
 in the list? The qualification described in the list is 
 no doubt a " house " occupation, but it is of a single 
 house ; whereas that which it is proposed to substitute 
 for it is the occupation of "houses in succession." 
 That these are two different qualifications was decided 
 in Bartlett v. Gibbs (a), and although that was not a 
 decision of a Court of Appeal, it would, in my opinion, 
 be unwise to interfere with it, even if we thought it a 
 wrong decision, after the length of time that has 
 elapsed without its being questioned, and after Parlia- 
 ment, with full knowledge of that decision, has passed 
 this later Act, which, in so far as this point is con- 
 cerned, does not differ from the earlier one. In my 
 opinion we ought to follow that case. I think, there- 
 fore, that the Revising Barrister was right, and had no 
 power to make the amendment. 
 
 BowEN, L.J. I should not add anything to what has 
 been said were it not that we have to review the decision 
 of some very eminent judges. In Bartlett v. Qibbs (a) the 
 Court held first, that the occupation of a house consti- 
 tuted a different qualification from the occupation of 
 houses in succession ; and secondly, that, that being so, 
 a list which describes in the third column the nature 
 of the qualification as " house," and in the fourth 
 column points to the occupation of a single house, can- 
 
 (o) 1 Lutw. 73 ; S.C. 5M.^ 0. 81. 
 
XLIX VICTORIA. 483 
 
 not be amended by substituting " houses in succession " 1885. 
 for " house." I think that that decision was right, but Foskett 
 whether it was right or wrong, it is now more than Kaufman. 
 forty years old, and for the reasons given by the 
 Master of the Rolls and Cotton, L. J., ought not to be 
 disturbed. 
 
 Assuming Bartlett v. Gibbs (a) to have been rightly 
 decided, it follows that this appeal must fail, unless 
 there is something in the Act of 1878 which materially 
 differs from sec. 40 of the Act of 1843, upon the 
 construction of which that case was decided. Sectioh 
 40 of the Act of 1843 begins with the same general 
 words as section 28, sub-s. 1, of the Act of 1878, enabling 
 the Eevising Barrister to correct any mistake which 
 should be proved to him to have been made in any 
 list. But there was a subsequent proviso in the follow- 
 ing terms : — " Provided always that no 
 
 evidence shall be given of any other qualification than 
 that which is described in the list of voters or claiiii, 
 as the case may be; nor shall the Barrister be at 
 liberty to change the description of the qualification as 
 it appears in the list, except for the purpose of more 
 clearly and accurately defining the same." Bartlett v. 
 Gibbs (a) decided that the general words with which 
 sec. 40 commenced were cut down by this proviso 
 within the limits which the proviso mentioned. Now 
 is there anything different in the Act of 1878 ? Section 
 24 of that Act gives an additional indulgence to the 
 voter by enabling him to make a declaration of a mis- 
 description of his qualification, and so to get it rectified 
 by the Revising Barrister. But when we come to 
 compare sec. 40 of the Act of 1848 with section 28 
 
 (o) 1 Lutw. 73 i S.C.5 M. <fc G. 81. 
 
484! MICHAELMAS SITTINGS. 
 
 1885. of the Act of 1878 we find that upon the point now 
 FosKBTT under consideration there is no difference between the 
 Kaufman, two sections, except that the words " except as herein 
 provided" are in sub-s. 13 substituted for the words 
 •' provided always " in the earlier Act. At first sight 
 that change of language would seem to be very 
 material. A proviso limits what has gone before and 
 cuts it down, but an exception — primd facie, so far 
 from cutting down what has preceded it, leaves it 
 standing. But there is a fallacy in assuming that the 
 substitution of the words " except as herein provided " 
 for the words "provided ahvays" has the effect of 
 destroying the force of the proviso. An indulgence 
 having been given to voters by sec. 24, it became 
 necessary to preserve it from the operation of the 
 restrictive words in sub-s. 13 of sec. 28, and the 
 draftsman having thus to introduce an exception upon 
 a proviso omits the words " provided always " and 
 inserts words of exception. But I think sub-s. 13 is a 
 proviso still, and, regard being had to the context and 
 subject-matter, that the sub-section should be read as 
 though the words were " provided always that, except 
 as herein provided." If that be so, the reasoning in 
 Bartlett v. Gibbs (a) should govern this case. It 
 was urged that upon this construction there was 
 no power to give effect to sec. 24. But I think 
 such a power is given by sub-s. 1 of sec. 28, which 
 is not limited by sub-s. 13 in respect of declarations 
 under sec. 24. 
 
 Upon the whole, I think that the decision in Porrett 
 V. Lord (b), although not proceeding on a wrong view 
 of the Act generally, did not sufficiently give effect to 
 
 {a) 1 LtUw. 73 ; S. C. 5 M. <t (6) Ante, p. 46 ; S. C. 5 O. P 
 
 "■ °1' D. 81. 
 
XLix Victoria;. 485 
 
 sec. 24, and that in that respect it waH a wrong 1885. 
 
 decision. Foskett 
 
 Decision affirmed. Kaupman. 
 
 Solicitor — For Appellant, E. T. Hargraves. 
 For Respondent, E. T. Hughes. 
 
486 
 
 MICHAELMAS SITTINGS. 
 
 IN THE COURT OF APPEAL. 
 Dashwood, Appellant ; Ayles, Respondent (a). 
 
 1885. APPEAL from the Queen's Bench Division (Lord 
 Nov. 6. -O- 
 Coleridae,C.J., Grove, J.,dissentiente Gave, J.), reversing 
 
 Where the ^ » , „ . . -r. • r xi. 
 
 nature of a a decision of one of the Revising Barristers lor the 
 
 county voter's __, _... .,, ^ p t\ j. 
 
 quaUfication JN orthern Division oi the county oi Dorset. 
 value of^ksB* The appellant duly objected to the name of James 
 described iTT -^j/fes being retained in the occupiers' list of voters for 
 the parish of Hammoon in the said division. 
 
 The following facts were established by the evi- 
 dence : — 
 
 The said James Ayles was thus entered in the occu- 
 
 list of voters 
 as " tenement 
 and garden," 
 and the situa- 
 tion of the 
 property as 
 " part of 
 bailiff's tene- . , , . . r t • t r tt • i 
 
 ment," and it piers ust 01 voters tor the parish oi Hammoon, m the 
 
 that^hTvoter Said division, as published by the overseers, 
 was the inha- 
 bitant occupier 
 of such " part 
 of bailiff's 
 tenement" as 
 his "dwelling- 
 house," the 
 Revising 
 Barrister 
 amended the 
 list by striking 
 cut the words 
 
 andpUdng"' The said James Ayles occupied a dwelling-house 
 *siwdUng- ^^^ garden only in the said parish, of the annual 
 "tenement?'^ Value of less than £10. The appellant duly served the 
 
 Held, that he 
 
 was justified W Reported by J. J. H. Saint, Esq. 
 
 in so amend- 
 ing, as he did not thereby alter the description of the qualification, but more clearly 
 and accurately defined it. 
 
 The formal amendment should have been to expunge the words "tenement and 
 garden," and substitute " dwelling-house." 
 
 Name of Voter in 
 
 full, surname 
 
 being first. 
 
 Place of 
 Abode. 
 
 Nature 
 
 of 
 
 Qualification. 
 
 Description of 
 Qualifying 
 Property. 
 
 Aylea, Jamet. 
 
 Hammoon. 
 
 Tenement and 
 garden. 
 
 Pt. BaUiff's 
 tenement. 
 
XLIX VICTORIA. - 487 
 
 respondent, James Ayles with a notice of objection 1885. 
 alleging " that the nature of the qualification was wrongly Dashwood 
 described." a/les. 
 
 The names of thirteen other persons in the parishes 
 o{ Hammoon and Mansion vfhose names and qualifi- 
 cations were set out in the first and second schedules 
 attached to the special case were objected to vinder 
 similar circumstances. 
 
 It was proved that the respondents were inhabitant 
 occupiers of dwelling-houses and entitled to be so 
 described in the lists, and that it was wholly " a mis- 
 take" of the overseers, and the Revising Barrister 
 decided that he had power under sub-sees. 1, 6, 12, and 
 13, of the 28th section of 41 & 42 Vict., c. 26, or other- 
 wise, to expunge the words "and garden" from the 
 third column, and to prefix the word "dwellings 
 house," making the nature of the qualification in the 
 third column read " dwelling-house tenement," and he , 
 retained the names of the said James Ayles and 
 the thirteen other persons in the said list. Due notice 
 of appeal from the Barrister's decision was given, and 
 he ordered the appeals in all the aforesaid cases to, 
 be consolidated. If the Court should be of opinion 
 that the decision was wrong, the registers of the said 
 parishes were to be amended by erasing the names of 
 the said James Ayles, and the thirteen other persons 
 from the said lists. 
 
 Grmmp, Q.C., for the voters. The amendment in 
 this case did not involve any change of the description 
 of the nature of qualification, and the case is, therefore, 
 distinguishable from Foskett v. Kaufman (a). All that 
 the Revising Barrister did here was to place " dwelling- 
 
 (o) Ante, p. 466 ; S. C. L. B. 16 Q. B. D. 279. 
 
 VOL. I. N N 
 
488 MICHAELMAS SITTINGS. 
 
 1885. house" before "tenement" and expunge the words 
 Dabhwood " and garden " as surplusage. What he did was for the 
 Atleb. purpose of more clearly and accurately defining the 
 qualification, as he was empowered to do by 41 & 42 
 Vict., c. 26, s. 28, sub-sec. 13. By section 27 of the 
 Eeform Act, 1832 (2 & 3 Will. 4, c. 45), a qualification 
 for a borough vote was given to the occupier of any 
 house, &c., occupied by him " separately or jointly with 
 any land within such borough" of the clear yearly value 
 of £10 ; and by section 3 of the Eepresentation of the 
 People Act, 1867 (30 & 31 Vict. c. 102), a borough 
 vote was given to "an inhabitant occupier .... of 
 any dwelling-house within the borough." Section 27 
 of the Reform Act, 1832, was in effect repealed by the 
 Eepresentation of the People Act, 1884 (48 Vict., c. 3), 
 which, in order to assimilate the occupation qualifica- 
 tion for counties and boroughs, has by section 5 given 
 a, vote for either a county or a borough to the occupier 
 of " any land or tenement in a county or borough " of 
 the clear yearly value of £10. The description of the 
 voters' qualification in the third column was a clumsy 
 description of a dwelling-house, which the tenement 
 was shown to be by the entry in the fourth column 
 "part of bailiff's tenement.'* In the interpretation 
 clause, section 11 of 48 Vict, c 3, it is provided that 
 in that Act, and the Representation of the People 
 Acts, as thereby defined, " the expression ' land or tene- 
 ment' includes any part of a house separately occupied 
 for the purpose of any trade, business, or profession." 
 
 [He was stopped by the Court.] 
 
 Foote for the objector. The word "tenement " is the 
 appropriate description of the £10 occupation quali- 
 fication, and is not used to describe the qualification 
 
XLIX VICTOUIA. ■ 489 
 
 derived from the inhabitajit occupation of a dwelling- 1885. 
 house. The two qualifications are distinct. The only way Dashwood 
 by which a man can claim the £10 occupation franchise Atles. 
 is by using the word " tenement " or " land." The only 
 way by which he can claim a household qualification is 
 by using the word "dwelling-house" — 48 Vict. c. 15, 
 sched. 2, par. 7 of Precept ; sched. 3, par. 5 of Precept. 
 The argument on the other side is misplaced as 
 regards counties. By sec. 20 of the Reform Act, 
 1832, the word "tenement" was appropriated to the 
 leasehold and rental qualifications; by sec. 6 of the 
 Eepresentation of the People Act, 1867, to the £12 
 occupation qualification ; and by the Representation of 
 the People Act, 1884, s. 5, to the £10 occupation qualifi- 
 cation. There is no authority for the use of the word to 
 denote the qualification conferred by the inhabitant 
 occupation of a dwelling-house. " Tenement " and 
 "dwelling-house" being, then, different qualification* 
 the amendment here involved a change in the descrip- 
 tion of the nature of qualification, and therefore ought 
 not to have been made, in the absence of a declaration 
 under sec. 24 of 41 & 42 Vict. c. 26. 
 
 [Cotton, L.J. What do you say is the ordinary 
 meaning of " tenement '' apart from the statute ?] 
 
 It means, as is submitted, anything in the nature of 
 real property. The Act of Parliament has here fixed 
 its meaning by appropriating it to the £10 occupation 
 franchise, and it would be wrong to attach to it a 
 colloquial meaning. In Friend v. Towers (a) " house " 
 was altered to "dwelling-house," but the decision of 
 
 (a) Ante, p. 310; 5. C. L. R. 10 Q. B. D. 87. ' •-■ 
 
 N N 2 
 
490 MICHAELMAS SITTINGS. 
 
 1885. this ,Court in Foshett v. Kaufman (a) removes any 
 Dashwood difficulty arising from Friend v. Towers (b). 
 
 v. 
 Ayles. 
 
 Lord EsHER, M.R In Foskett v. Kaufman (b), this 
 Court held that there must be some limit to the Re- 
 vising Barrister's power of amendment, but I think we 
 were all of opinion that it was intended that the power 
 should be as large as is consistent with the ordinary 
 rules of construction of Acts of Parliament, and that 
 consistently with those rules the Eevising Barrister 
 ought to amend wherever he can do so fairly as 
 between the objector and the person objected to. The 
 only question in this case is whether the Barrister had 
 power to amend, because, if he had the power, the fact 
 of his having made the amendment shows that he 
 thought he could do so fairly as between the objector and 
 the person whose vote was in question. As to that, at, 
 all events, we cannot say that he was wrong. Now, if 
 in this entry in the overseers' list the word " tenement" 
 is to be taken as descriptive of a county quahfication in 
 respect of land or of anything else except an inhabitant 
 occupation of a dwelling-house, then, according to our 
 decision in Foskett v. Kavfman (a), the amendment 
 could not have been legally made, as it would have 
 involved the alteration of the nature of the qualifica- 
 tion; but if the word, read fairly as between the 
 objector and person objected to, may be treated as 
 being simply an irregular description of a " dweUing- 
 house," then the Eevising Barrister had power to 
 amend. 
 
 The question then is, what is the fair construction of 
 the entry ? We must look at the whole entry and the 
 
 [a) Ante, p. 466; S. 0. L. R. 16 (J) Ante, p. 310; S. C. L R 10 
 
 Q. B. D. 279. Q. B. D. 87. 
 
XLIX VICTOKIA. , 491 
 
 surrounding circumstances. The terms of the entry 1885. 
 are " tenement and garden, pt. bailiff's tenement." The dashwood 
 appellant occupied a •' dwelling-house," and I presume jj^^.^^ 
 that it consisted of a separate room in the bailiff's house 
 which the appellant occupied as a dwelling. I think that 
 the person who made the entry meant to use the word 
 " tenement " in what may be called a vulgar sense of 
 the word, that is, a sense in which the word is com- 
 monly used by some people, to describe a small house. 
 If so, then although that was an irregular description, 
 it was nevertheless a description of the same qualification 
 as that which the Eevising Barrister has described in his 
 amendment, and he had the power to amend. The 
 description is irregular, because it has a tendency to 
 confuse the qualification by inhabitancy of a dwelling- 
 house with oiie in respect of the occupation of land or 
 of anything to which the word " tenement " might apply 
 except the inhabitant occupation of a dwelling-house. I 
 do not think, however, that that irregularity of description 
 prevented the Revising Barrister from amending. He 
 had jurisdiction to amend, and we are unable to say that 
 he exercised it wrongly. I cannot, however, compliment 
 him on the way in which he has made the amendment; 
 I think he ought to have expunged the words " tene- 
 ment and garden " altogether, and inserted the word 
 " dwelling-house." 
 
 Cotton, L.J. I am of the same opinion. Under 
 sec. 28, sub-s. 13, of the Registration Act, 1885, the 
 Revising Barrister had power to alter the description 
 of the qualification " for the purpose of more clearly 
 and accurately defining the same," but only for that 
 purpose. I think that that is what he has done here. 
 The words " tenement and garden," although they do 
 
492 MICHAELMAS SITTINGS. 
 
 1885. not clearly and accurately define, may, in my opinion, 
 "Pashwood be taken to refer to and describe a " dwelling-house." 
 Atles. " Tenement," in its strict legal sense, no doubt, means 
 anything that may be held ; but in Blackstone's Gom- 
 vnentaries (a) I find the following passage : " The word 
 ' tenement ' is of still greater extent, and though in its 
 ordinary acceptation it is only applied to houses and 
 other buildings, yet in its original, proper, and legal 
 sense, it signifies everything that may be holden, that 
 is, be the subject of tenure." I think that the ordinary 
 meaning of the word, as understood in Blackstone's 
 day, still remains, and that the common people use the 
 word " tenement " as meaning a house or any building 
 of that nature. The word then being capable of 
 signifying a dwelling-house, I think it would be going 
 too far to say that the alteration of it to " dwelling- 
 house " is the introduction of a new qualification, and is 
 not the more accurate definition of the qualification in 
 respect of which the voter is entitled to be on the 
 register. I think the Revising Barrister had power to 
 ipake the smendment, although I agree with the Master 
 of the Rolls as to the form in which the amendment 
 should have been made. 
 
 BowEN, L.J. I am of the same opinion. 
 
 Appeal allowed. 
 
 Solicitors— For Appellant, Field, Roscoe & Co., 
 
 for W. E. Brewnand, Blandford. 
 For Respondent, Gregory, Rowdiffea & Co., 
 for J. T. Bavies, Sherborne. 
 
 (o) 1 St^hm'i BlacHtme, lOtA ed. p. 169. 
 
XLIX VICTORIA. 
 
 493 
 
 IN THE COURT OF APPEAL. 
 MiNiFiE, Appellant ; Banger, Eespondent (a). 
 
 1885. 
 Nov. 6. 
 
 j^PPEAL from the Queen's Bench Division (Lord 
 Coleridge, C.J., Ormie, J., dissentiente Cave, J.) re- 
 versing a decision of one of the Revising Barristers for ^^'e ^^ 
 the Northern Division of the county of Dorset. county voter's 
 
 ■' qualification 
 
 The appellant duly objected to the name of the ("^ *'^^ annual 
 
 value of leas 
 
 respondent being retained in the occupiers' list of than fio) was 
 . J. ^ ■ 1 I. n ^ 1 described in a 
 
 voters tor the pansh of StovMon Caundle m the saiij list of voters 
 
 J- • - as "tenement 
 
 division. and garden," 
 
 The following facts were established by the evi- ti^n of^the"* 
 
 dence ■ — property as 
 
 '**'"^*'- "School 
 
 The respondent was thus entered in the occupiers' ^^<^>" *"/ i* 
 
 * J^ appeared from 
 
 list of voters for the parish of Stourton CauncUe in *'^« schedule 
 
 attached to the 
 
 the said division, as published by the overseers. 
 
 Name of Voter in 
 
 full, Kumame 
 
 being first. 
 
 Banger Isaac. 
 
 Place of 
 Abode. 
 
 Stowton 
 
 Cawndle. 
 
 Nature 
 
 of 
 
 Qualification. 
 
 Tenement and 
 garden. 
 
 special case 
 that, with 
 respect to 
 
 Description of ^ihirty-three 
 Qualifying '^^^ voters in 
 
 Property, 
 
 School Yard. 
 
 the same list, 
 the nature of 
 their qualifi- 
 cation was 
 described in 
 the same way, 
 and the situa- 
 tion of the 
 
 The respondent occupied a dwelling-house and garden property was 
 
 only in the said parish, of the annual value of less than fu*" *Tt°j 
 
 to be "School 
 (o) Beported by J. J. H. Saint, Esq. Yard ;" as to 
 
 five, "Cat 
 Lane;" as to three, "High Street," and so forth, it was held that, all the cases in the 
 schedule being looked at together, the Bevising Barrister might fairly conclude that the 
 description " tenement and garden " was intended to indicate a dwelling-house, and 
 therefore that he was entitled to Amend the description. 
 
494 MICHAELMAS SITTINGS. 
 
 1885. £10. The appellant duly served the respondent with 
 MiNiFiE a notice of objection, alleging "that the nature of his 
 Banqeb. qualification was wrongly described." 
 
 The names of thirty-three other persons, whose names 
 and qualifications were set out in a schedule attached 
 to the special case, were objected to under similar 
 circumstances. 
 
 It was proved to the Barrister that the alleged mis- 
 description was wholly a mistake of the overseers, and 
 he decided that he had power, under sub-sees. 1, 6, 12, 
 and 13, of the 28th section of 41 & 42 Vict, c. 26, or 
 otherwise, to expunge the words "and garden" from 
 the third column, and to prefix the word " dwelling- 
 house," making the nature of the qualification in the 
 third column read " dwelling-house tenement," and he 
 letained the names of the respondent, and the thirty- 
 three other persons in the said list. Due notice of appeal 
 against the Barrister s decision was given, and he ordered 
 the appeals in all the aforesaid cases to be consolidated. 
 If the Court should be of opinion that the decision was 
 wrong, the register was to be amended by erasing the 
 names of the respondent and the thirty-three other 
 persons from the said list, 
 
 GrvATvp, Q.C., for the voters, This case is practically 
 the same as Dashwood v. Ayles (a), The word " tene- 
 ment " is here explained by " School Yard," which, like 
 "Dean's Yard" and "Bell Yard," is the local description 
 of a number of dwelling-houses. The entry here de- 
 notes a dwelling-house situate in a locality called 
 " School Yard." There was no change in the nature of 
 the qualification involved in this amendment; it was 
 one, therefore, which could be properly made. 
 (a) Ante, p. 486 ; 5. C. L. R. 16 Q. B. D. 295. 
 
XLIX VICTOKIA. 495 
 
 Foote for the objector. There is nothing in the term 1885. 
 " School Yard " to indicate what is the subject of oecu- Miniwe 
 
 V. 
 
 pation to ■which " tenement " in the third column points. Bangeb. 
 Naming the locality in the fourth column affords no 
 assistance in determining whether the occupation is 
 that of a shop, or an office, or a dwelling-house. In 
 this respect the case differs from Danhwood v. 
 Ayles (a). 
 
 Lord EsHER, M.R. Looking at the descriptions in 
 the third and fourth columns, not only of the appellant's 
 qualification, but also of the other persons mentioned 
 in the schedule, I am unable to say that the Revising 
 Barrister may not reasonably have come to the con- 
 clusion that the description "tenement and garden" 
 was intended to indicate a dwelling-house, and, if so, 
 I think he was justified in making the amendment. I 
 wish, however, that it should be understood that our 
 decision is not to be considered as importing, that we 
 think that in every case in which the word "tenement " 
 is entered in the third column, the Revising Barrister 
 would be entitled to amend such entry. 
 
 Cotton and Bowen, LL. JJ., concurred. 
 
 Appeal allowed. 
 Solicitors. — For Appellant, Field, Roscoe & Go. 
 
 for W. E. Brennand, Blandford, 
 For Respondent, Gregory, Rowdiffes & Go. 
 for J. T. Bavies, Sherborne. 
 
 (a) Ante, p. 486 ; S. O. L. R. 16 Q. B. B. 295. 
 
AN 
 
 INDEX 
 
 THE PRINCIPAL MATTERS 
 
 CONTAINED IN THIS VOLUME. 
 
 ACTUAL OCCUPATIOK 
 
 See Ebntchargb, 1. 
 
 ACTUAL POSSESSION. 
 
 See Rentohargb, 3. 
 
 ADDEESS OF LANDLORD. 
 
 In new lodger claims. 
 
 See Amendment, 5, 
 
 AMENDMENT. 
 
 Substitution of dwelling-house for 
 
 house. 
 [. A Eevising Barrister has power 
 under 41 & i2 Vict. c. 26, s. 28, 
 STib-sec. 12, to alter the descrip- 
 tion of a qualification ia the third 
 column of a borough list from 
 " house '' into " dwelling-house," 
 so as to describe the qualification 
 created by 30 & 31 Vict. c. 102. 
 sec. 3. 
 
 Whether such qualification be 
 sufficiently described by the word 
 
 " house " without amendment, 
 quaere. Friend v. Towers. 310 
 
 Successive occupation. 
 
 2. A voter's qualification was entered 
 in the borough lists " dwelling- 
 houses ia succession," "44, Oxford 
 Street, and 34, Prospect Place." 
 The voter, having occupied 31, 
 Prospect Place, between his occu- 
 pation of the other 2 houses, had, 
 in fact, occupied 3 houses in suc- 
 cession during the qualifying year. 
 The overseer knew this, but by 
 mistake omitted to insert 31, 
 Prospect Place, along with the 
 other 2 houses. 
 
 Held, per Stephen, J., and Cave, J. 
 (Lord Coleridge, C. J., dissentiente), 
 that the mistake was amendable 
 under 41 & 42 Vict. c. 26, s. 28, 
 sub-s. 1 (a). 
 
 The Eevising Barrister had 
 
 (a) But see now Fosketi v. Kaufman, ante, p. 466 ; S. C. L. B. 16 Q. B, D. 279. 
 
498 
 
 INDEX TO THE PEINCIPAL MATTEES. 
 
 amended by striking out the 
 numbers of the houses. 
 Held, that this was wrong, but that 
 it was in the power of the Court 
 to make the proper amendment. 
 Ford V. Hoar. 351 
 
 3. A voter's qualification was entered 
 in the borough lists " offices, suc- 
 cessive occupation," " High Street 
 and Charles Street," but during 
 the whole of the qualifying year 
 he had occupied the office in 
 High Street only. The misde- 
 scription was due to an erroneous 
 belief of the overseers. 
 
 Held, that the Kevising Barrister 
 had power to amend, and ought to 
 have amended, and not to have 
 
 ' expunged the voter. 
 
 Per Lord Coleridge, C.J. That the 
 case feU within 41 & 42 Vict. c. 
 26, s; 28, sub-s. 12. Blosse v. 
 
 ' Wheatley. 364 
 
 Declaration for correcting misde- 
 scription. 
 
 4. In a "declaration for correcting 
 ' misdescription," made under sec. 
 
 24 of 41 & 42 Vid. c. 26, a 
 ' borough voter (whose qualification 
 appeared on the list of voters as 
 "house," "8, BirUy Place"), 
 stated the correct particulars of his 
 ■ qualification to be " houses in suc- 
 cession," " 8, Birley Place, and 9, 
 Birley Place." 
 Held, that the Eevising Barrister 
 ' had no power to amend the list in 
 these particulars, as the proposed 
 addition in the fourth column 
 would not constitute a better 
 
 identification of the property, but 
 a change in the described qualifi- 
 cation. Forrett v. Lord (a). 46 
 
 Ldst of new lodger claimants, not a 
 
 list of voters. Discretixin of Revising 
 
 Barrister. 
 
 5. The list of new lodger claimants, 
 required to be published by over- 
 seers on or before the 1st of Sep- 
 tember, is not a " list " of voters 
 within sub-ss. 1 or 6 of 41 & 42 
 Vict. c. 26, s. 28. 
 Held, therefore, that the duties im- 
 posed under those sub-sections 
 on a Eevising Barrister, as to 
 amendment, have no application 
 to such a Hst. 
 
 The exercise of the power con- 
 ferred on a Eevising Barrister 
 under sub-s. 2 of correcting mis- 
 takes in a claim is discretionary. 
 
 Where, therefore, a Eevising 
 Barrister declined to amend the 
 claim of a new lodger (by insert- 
 ing the amount of rent and the 
 landlord's address, which had been 
 omitted, on these particulars being 
 supplied at the revision), upon 
 grounds which were consistent 
 with his having exercised his dis- 
 cretion correctly in so declining, 
 the Court refused to reverse his 
 decision. 
 
 Section 23 makes the declara- 
 tion of a lodger annexed to his 
 claim prima facie evidence of his 
 qualification. Semble, per Lord 
 Coleridge, C.J., and Denman, J., 
 that this section does not apply to 
 
 (a) But see now Poakett v. Kaufman, ante, p. 466 ; S. G. L. R. 16 Q. B. D. 279. 
 
INDEX TO THE PEINCIPAL MATTEES. 
 
 499 
 
 a new lodger claimant (Lindley, J., 
 dubitante) (a). Piclcard v. Baylis. 
 
 98 
 Notice of objection. 
 6. The note to Form I. (Nos. 1 and 
 2) in the schedule to 41 & 42 Vict. 
 c. 26, refers only to the list on which 
 the name of the person objected 
 to, and not to that on which the 
 name of the objector, appears. 
 
 Therefore, where an objector to a 
 parliamentary voter for a borough 
 describes himself as on the list of 
 parliamentary voters for a particular 
 parish, it is not necessary for him 
 to state under what head of quali- 
 fication he appears, or, if the list 
 be made out in divisions, in which 
 divisioiL 
 
 An objector who in his notice 
 of objection should have de- 
 scribed himself as "on the list 
 of parliamentary voters for the 
 parish of W.," omitted from the 
 above description, the word " parlia- 
 mentary.'' The Revising Barrister 
 having declined to amend, not in 
 the exercise of discretion, but on 
 the ground that he had no power, 
 
 Held, that the omission was " a mis- 
 take," which, under 41 & 42 Viet. 
 c. 26, s. 28, sub-s. 2, he had power 
 to correct and ought to have 
 corrected. Semhle, per Lord Cole- 
 ridge, C.J., and Lindley, J., that, 
 unless amended, the notice of 
 objection was bad. James v. 
 Howarth. 87 
 
 7. An objector in his notice of ob- 
 jection to a borough voter de- 
 scribed himself as " on the list of 
 
 parliamentary voters for the parish 
 of H," but omitted to state his 
 place of abode. The objector had 
 resided in H all his life, and was 
 well known there (being a practis- 
 ing solicitor, clerk to the magis- 
 trates, and coroner). The omission 
 had misled no one. The Eevising 
 Barrister having amended the no- 
 tice of objection by inserting the 
 words " of H," which, it was ad- 
 mitted, sufficiently described the 
 objector's place of abode : held 
 that the omission was a "mis- 
 take " within sub-a 2 of 41 & 42 
 Vict. c. 26, s. 28, which the Ee- 
 vising Barrister had power to 
 amend. Adams v. Bostock. 275 
 
 8. A notice of objection given to 
 overseers was to the names "in 
 the Blockhouse list " " division 1." 
 There are 3 lists of parliamentary 
 voters for the Blockhouse, 1, 
 Householders and occupiers ; 2, 
 Freemen ; 3, Lodgers ; but the 
 only one of these which is divided 
 is the first. 
 
 Held that the notice did, at all 
 events, sufficiently specify the list, 
 to which the objection referred, to 
 authorise an amendment by the 
 Eevising Barrister under sec. 28, 
 sub-s. 2, of 41 & 42 Viet. c. 26. 
 Bollen V. Southall. 368 
 
 Raitriction on power of Amendment. 
 
 9. The power of amendment given 
 by section sec. 28 of 41 & 42 
 Vict. c. 26, sub-sec. 1 is, in the 
 absence of a declaration under sec. 
 24, restricted by sub-sec. 13 to 
 cases which involve no alteration 
 
 (a) But see Nuth v. Tamplin, ante, p. 249. 
 
500 
 
 INDEX TO THE PRINCIPAL MATTERS. 
 
 of the description of the nature of 
 the qualification. Fosltett v. Kauf- 
 man. ^^^ 
 
 Desarvption of Qualification. 
 
 10. Where the nature of a couuty 
 voter's qualification (of the annual 
 value of less than £10) was 
 described in a list of voters as 
 "tenement and garden," and the 
 situation of the property as " part 
 of baUiffs tenement," and it was 
 proved that the voter was the 
 inhabitant occupier of such " part 
 of bailifi"s tenement " as his 
 "dwelling house," the Revising 
 Barrister amended the list by strik- 
 ing out the words " and garden " 
 and placing the word "dwelling- 
 house " before " tenement " : — 
 
 Hdd that he was justifiedinsoamend- 
 ing, as he did not thereby alter 
 the description of the qualification, 
 but more clearly and accurately 
 deiined it. 
 
 The proper form of amendment 
 would have been to expunge the 
 words " tenement and garden " 
 and to substitute "dwelling-house." 
 Dashwood v. Ayles. 486 
 
 11. Where the nature of a county 
 voter's qualification (of the annual 
 value of less than £10) was 
 described in a list of voters as 
 " tenement and garden," and the 
 situation of the property as 
 "School Yard," and it appeared 
 from the schedule attached to the 
 special case that, with respect to 
 thirty-three other voters in the 
 same list, the nature of their 
 qualification was described in the 
 same way, and the situation of 
 
 the qualifying property was, as to 
 two of them, stated to be 
 " School Yard," as to five, " Cat 
 Lane," as to three, "High Street," 
 and so forth, it was held that, alP 
 the cases in the schedule being 
 looked at together, the Revising 
 Barrister might fairly conclude 
 that the description "tenement 
 and garden " was intended -to 
 indicate a dwelling-house, and, 
 therefore, that he was entitled to 
 amend the description. Minifie'v. 
 Banger. 493 
 
 APPEAL. 
 
 See Practice. 
 
 APPORTIONMENT. 
 
 See Rent Charge, 2. 
 
 ARTICLED CLERK. 
 
 See Residence, 1. 
 
 BARRACKS. 
 See Service Franchise, 1. 
 
 BREAK OP RESIDENCE. 
 See Residence. 
 
 CAMBRIDGE UNIVERSITY. 
 See Residence, 3. 
 
 CASE. 
 
 Refusal to state. 
 
 See Notice op Claim. 
 
 CESTUI QUE TRUST. 
 
 See Qualification, 1. 
 
 CLAIM. 
 
 See Publication. 
 
 Of person omitted from Lid of 
 
 Voters. 
 
 See Notice op Claim. 
 
INDEX TO THE PRINCIPAL MATTERS. 
 
 501 
 
 COLLEGE ROOMS. 
 
 In Universities. 
 
 See Residence, 3. 
 
 CONSENT. 
 
 See Pbacticb. 
 
 CONSOLIDATION OF APPEAL. 
 
 See Practice. 
 
 CONSTRUCTIVE INHABL 
 
 TANCY. 
 
 See Residence, Service Franchise. 
 
 CONTEMPORANEOUS OCCU- 
 PATION. 
 
 Of house and land under one land- 
 lord. 
 
 1. The words "land occupied to- 
 gether -with a house &c.," in 
 sec. 25 of 2 Will. 4, c. 45, import 
 something more than contempora- 
 neous occupation under the same 
 landlord. 
 
 Therefore, where within the 
 Parliamentary horough of P. a 
 house and land, a mile apart from 
 one another, had during the 
 qualifying period been contem- 
 poraneously occupied under the 
 same landlord, hut under separate 
 demises commnncing from differ- 
 ent dates, and with no community 
 of purpose in the occupation, and 
 the Revising Barrister had allowed 
 the occupier's county franchise for 
 the land upon the ground that it 
 was not " occupied together with " 
 the house within the meaning of 
 the section, the Court, upon 
 appeal, aifirmed the Revising 
 Barrister's decision. Sanders v. 
 Sear son. 135 
 
 Of house and land, by owner in fee. 
 
 2. A. claimed the county franchise 
 for a plot of building land which 
 he owned in fee, and occupied tem- 
 porarily as garden ground, within 
 the parliamentary borough of P. 
 He also owned in fee, and occu- 
 pied, a house within the borough, 
 a mile distant from the land. 
 
 The Revising Barrister having" 
 allowed A.'s claim, on the ground 
 that the land was not " occupied 
 together with" the house within 
 sec. 24 of 2 "Will. 4, c. 45, the 
 Court, on appeal, affirmed his 
 decision. Sanders v. Smith. 150 
 
 CONTROL. 
 
 Of landlord. 
 
 See Dwelling House. 
 
 Of master. 
 See Service Franchise. 
 
 COUNTY VOTE. 
 
 See Qualification. Contempo- 
 
 RANEons Occupation. Rbntcharge. 
 
 CROWN SERVANTS. 
 See Service Franchise. 
 
 DATE. 
 See Notice op Objection, 2. 
 
 DECLARATION. 
 For coi'recting misdescription. 
 The duty imposed on the Revising 
 Barister under sec. 24 of the Par- 
 liamentary and Municipal Regi- 
 stration Act, 1878, of receiving a 
 declaration under that section as 
 evidence of the facts declared to 
 is conditional on the declaration 
 
502, 
 
 INDEX TO' THE PEINCIPAL MATTEKS. 
 
 being sent to the town clerk in 
 due time, and, if not so sent, the 
 Eevising Barrister has no power to 
 receive it. DakinrjN. Eraser. 455 
 See also Amendment 4, 9. 
 Lodger. 
 
 DESCEIPTION OF QTJALIFICA- 
 
 TlOJSr. 
 See Amendent 1, 2, 3, 4, 9, 10, U. 
 
 DISABILITY. 
 
 Of cestui que trust. 
 
 See Qualification, 1. 
 
 DISCEETION. 
 
 In amending. 
 
 See Amendment 5. 
 
 As to proof of claim. 
 
 See Notice of Claim. 
 
 DISQUALIFICATION. 
 See Parochial Relief. 
 
 DIVIDED PAEISHES. 
 
 iSee Local Government Board 
 
 Order. 
 
 DIVISIONS. 
 
 See Municipal Franchise. 
 
 Amendment 8. 
 
 DOUBLE QUALIFICATION IN 
 BOEOCJGH. 
 
 One who occupies in a parliamentary 
 borough his own freehold house 
 (capable of conferring a borough 
 vote), and who also occupies a 
 dwelling-house in the same borough, 
 is not entitled to the county fran- 
 chise in respect of the freehold, 
 although the Eevising Barrister 
 for the borough, has under 41 & 
 42 Vict. c. 26, s. 28, sub-s. 14, 
 retained the dwelling-house quali- 
 
 fication for voting, and noted, as 
 to the freehold, that the occupier 
 is not entitled to vote for the 
 borough in respect thereof. Chil- 
 cott V. Bullen. 282 
 
 DWELLING HOUSE. 
 1. An occupierof a "dwelling-house" 
 within 30 & 31 Vict, c. 102, s. 3, 
 and 41 & 42 Vict., c. 26, s. 5, 
 must be one who would be rate- 
 able as an occupier under 43 Eliz., 
 c. 2. 
 
 A lodger, therefore, who is not 
 such an occupier, is not en- 
 titled to the " dwelling-house " 
 franchise, notwithstanding that as' 
 a lodger he has occupied rooms in 
 a house separately, and that sec. 
 5 of 41 & 42 Vid., c. 26, defines 
 " dwelling-hoase" to include " part 
 of a house separately occupied as 
 a dwelling." 
 
 Where the owner of a house, 
 who lets unfurnished apartments, 
 reserves a part, in which he either 
 resides himself, or has servants to 
 look after the house for him, and 
 retains control over the staircases, 
 passages and outer door (together 
 with a right of interference to turn 
 out trespassers and the like), giv- 
 ing the inmates merely a right of 
 ingress and egress to their apart- 
 ments, the inmates, notwithstand- 
 ing they have the exclusive use of 
 their apartments, a latch-key to the 
 outer door, and a key to the inner 
 door leading to their apartments, 
 are lodgers. 
 
 Where, on the other hand, the 
 owner lets out the whole of the 
 apartments to inmates, who occupy 
 
INDEX TO THE PEmCIPAL MATTERS. 
 
 503 
 
 separately, and the owner does 
 not reside, or exercise any control 
 or interference over the house, 
 then, although the passages and 
 staircases be not demised, but only 
 a right of ingress and egress over 
 them given to the inmates, the 
 inmates are occupying tenants, and, 
 as such, entitled to the "dwelling- 
 house" franchise; nor does it make 
 any difference whether or not the 
 landlord repairs, or whether or 
 not he pays the rates and taxes. 
 
 A. had the exclusive use of two 
 rooms, which he took unfurnished, 
 at a Weekly rent. A.'s landlord 
 resided in aU the rest of the house, 
 but supplied no service to A. ; and 
 both had keys of the outer door. 
 
 Held (by the Court of Appeal, 
 reversing the Queen's Bench Divi- 
 sion), that A. was a lodger, and, 
 as such, not entitled to the "dwell- 
 ing-house" franchise. 
 
 But aliter (in both Courts) where 
 aU the rooms in the house were 
 let out, and the landlord did not 
 reside, or retain control, although 
 the passage and staircase were not 
 demised, and the landlord repaired, 
 and paid rates and taxes. Bradley 
 V. Baylis, Morfee v. Novis, Kirhy 
 V. Biffen. 163 
 
 2. Where at the commencement of 
 the qualifying year a house was 
 whoUy let out in rooms so as to 
 constitute each tenant the occupier 
 of a "dwelling-house" within 30 & 
 31 Vid. c. 102, s. 3, and 41 & 42 
 Vict. c. 26, s. 5, but during the 
 qualifying year one of the tenants 
 relinquished the tenancy of his 
 
 room, and gave up his keys to the 
 landlord, who took the usual steps 
 to re-let, but without exercising 
 any actual control over the house : 
 Held (affirming the decision of 
 the Queen's Bench Division), that 
 these facts did not affect the status 
 of the remaining tenants, and, con- 
 sequently, that each of such tenants 
 was entitled to the borough fran- 
 chise as the inhabitant occupier of 
 a "dwelling-house.'' AncketUl v. 
 Baylis. 289 
 
 See also Amendment, 1. Service 
 Feanohise. 
 
 ELECTORAL INCAPACITY. 
 See Incapacity. 
 
 EQUITABLE INTEREST. 
 See Qualification, 1, 2. 
 
 EVIDENCE. 
 
 See Declaration. 
 
 Lodger. 
 
 FREEHOLD. 
 
 See. Qualification. Double Quali- 
 fication IN Borough. Contbm- 
 poEANKons Occupation, 2. 
 
 HOUSE. 
 See Amendmb.st, 1. Dwelling- 
 house. 
 
 INCAPACITY. 
 The incapacity referred to in 41 
 & 42 Vid. c. 26, s. 28, sub- 
 sec. 7, is a general incapacity, 
 affecting the status as an elector, 
 and not an incapacity which mert'ly 
 
 o o 
 
504 
 
 INDEX TO THE PEINCIPAL MATTEES. 
 
 affects the right of voting in a par- 
 ticular year. 
 
 Neither the receipt of parochial 
 relief, nor the insufficient occupa- 
 tion of the qualifying premises are 
 incapacities within this sub-section. 
 Held, therefore, that the Kevis- 
 ing Barrister had no power to ex- 
 punge for either of these defects 
 names which were unobjected to. 
 Hayward v. Scott. 76 
 
 INDUSTEIAL TEAINEE. 
 See Service Feanchisb, 2. 
 
 INHABITANCY. 
 See Eesidencb. Service Frakchise. 
 
 LANDLOED'S CONTEOL 
 
 Evidenced by residence of landlord 
 
 or his servants. 
 
 See Dwelling-house, 1. 
 
 LEGAL TITLE OE LANDLOED. 
 
 To render the occupation of a voter 
 an occupation as tenant within 
 2 Will. 4, c. 45, s. 27 (so as to 
 • qualify him for the borough fran- 
 chise), it is not essential that the 
 voter's lessor should have a Valid 
 , legal title to demise. 
 
 Therefore, where premises com- 
 prised in a settlement deed were 
 demised to the voter by one of the 
 trustees, who, until such demise, 
 had himself occupied them, paying 
 rent to the cestui que trust, without 
 the interference of his co-trustee ; 
 
 Held, that, assuming any valid 
 objection to exist to the lessor's 
 title to demise, such objection did 
 not affect the voter's qualification, 
 as the occupier as tenant of the 
 (a) See, as to this, s. 18 
 
 demised premises. Fotele v. Tre- 
 vor. ■ ^^ 
 LIST 
 Of new lodger claimants, not a lid of 
 voters. 
 See Amendment, 5. 
 
 Of voters, on which name of pei'son 
 
 objected to appears. 
 
 See Notice of Objection, 3. 
 
 Of voters, on which objector's name 
 
 appears. 
 
 See Amendment, 6. Notice op 
 
 Objection, 1. 
 
 LOCAL GOVEENMENT BOABD 
 OEDEE. 
 
 The amalgamation by Order of the 
 Local Government Board, made 
 under the Divided Parishes and 
 Poor Law Amendment Act, 1876, 
 of an isolated part of a parish, 
 within the limits of a parlia- 
 mentary borough, with a parish 
 outside those limits, does not affect 
 the rights of electors, whose quali- 
 fications lie within the part so 
 amalgamated, to vote, as before, 
 for the parliamentary borough. 
 Foster v. Medwin (a). 118 
 
 LODGEE. 
 
 Sec. 23 of 41 & 42 Vict. c. 26, which 
 makes the declaration annexed to 
 the claim of a person claiming to 
 vote as a lodger, for the purposes 
 of revision, primd facie evidence 
 of his qualificatioh, is not restricted 
 in its application, so as to apply 
 only to claimants on the existing 
 register claiming again under sec. 
 22 in respect of the same lodgings, 
 but applies generally to all lodger 
 
 of 48 & 49 Vict. c. 23. 
 
INDEX TO THE PRINCIPAL MATTERS. 
 
 505 
 
 claimants. Nuth v. Tamplin. 
 
 249 
 See also Amendment, 5. Dwelling- 
 house, 1. 
 
 LODGER CLAIM. 
 
 Defects therein. 
 See Amendment, 5. 
 
 MISTAKE. 
 
 See Amendment. 
 
 MUNICIPAL FRANCHISE. 
 
 L The municipal franchise in respect 
 of parts of houses separately occu- 
 pied is not confined to parts of 
 houses occupied for business pur- 
 poses, but includes those occupied 
 for the purposes of dwelling. 
 Greenway v. Batehelor (Aldridge's 
 case). 317 
 
 2. In the revision of a borough list 
 of voters made out in divisions 
 under 41 & 42 Viet. c. 26, s. 15, 
 the name of a voter appeared in 
 Division One as a parliamentary 
 and municipal voter. The only 
 objection to the voter was in 
 Form (I) No. 2 (parliamentary), 
 and, upon this objection being 
 sustained, the Revising Barrister 
 was requested to transfer the name 
 from Division One to Division 
 Three. This he declined to do 
 without proof of the municipal 
 qualification, and, none being ad- 
 duced," he expunged the name 
 from the list of voters. 
 
 Held, that, in the absence of proof 
 of the municipal qualification, the 
 Revising Barrister in thus acting, 
 had acted rightly. ^ Greenway v. 
 Batchdor {JacoVs case) 322 
 
 NEW LODGER CLAIM. 
 
 See Amendment, 5. 
 Lodger. 
 
 NOTICE OF CLAIM 
 
 Where claimant has been omitted 
 from list of voters. 
 
 A claimant who has been omitted 
 from the list of voters must prove 
 " to the satisfaction of the Revis- 
 ing Barrister" that he gave due 
 notice of his claim to be inserted. 
 Therefore,, where a claim, which 
 purported to be signed by the 
 claimant, had been accepted and 
 published by the overseers, and in 
 the Court of Revision was unop- 
 posed, but the Revising Barrister, 
 though satisfied with the proof of 
 the qualification, was not satisfied 
 that the claim had emanated from 
 the claimant, and thereupon dis- 
 allowed it, refusing to state a 
 case : 
 
 Held, that his refusal was justified, 
 inasmuch as he was clearly not 
 bound to allow the claim, even if 
 he had a discretion which could 
 have authorized its reception. In 
 re Sale. 152 
 
 NOTICE OF OBJECTION. 
 Sufficiency of objector's description. 
 1. An objector described himself as 
 on the list of parliamentary voters 
 for " the parish of the borough of 
 L., Division I." The parliamentary 
 borough of L. consists of 3 locali- 
 ties, with separate overseers and 
 rates. Of these one is the muni- 
 cipal borough of L. Another (con- 
 sisting of the part of the parish of 
 
506 
 
 INDEX- TO THE PEINCIPAL MATTEES. 
 
 L. outside the mmiicipal borough) 
 is known as "the parish of L." 
 Held, that the notice referred with 
 sufficient distinctness not to " the 
 parish of L.," but to the municipal 
 borough. Sargent v. Rodd. 14 
 See also Amendment, 6, 7. 
 
 Defective date. 
 
 2. A notice of objection to a county 
 claimant given to overseers under 
 6 & 7 Vict. c. 18, s. 7, was dated 
 the 18th of August, "one thousand 
 eight hundred and eighty," instead 
 of " one thousand eight hundred 
 and eighty-three " ; but the ob- 
 jector having given a proper notice 
 of objection to the claimant him- 
 self, the latter was not inconve- 
 nienced or misled. 
 
 Held, nevertheless, that the defec- 
 tive date was fatal to the validity 
 of the notice ; also that the over, 
 seers had no power to waive such 
 defect, and consequently had not 
 done so by publishing the claim- 
 ant's name in their list of persons 
 objected to. Freeman v. Newman. 
 
 342 
 
 List of voters, on which name of person 
 objected to appears, how specified. 
 
 3. In the borough forms of notice of 
 objection (Nos. 1 and 2) given in 
 Form I. of the Parliamentary and 
 Municipal Eegistration Act, 1878, 
 the list of parliamentary voters 
 (which, if there are more lists than 
 one, the note to these forms re- 
 quires to be specified) is not the 
 list for any particular parish, but 
 the list indicating the head of 
 qualification under which the name 
 of the person objected to appears. 
 
 SemUe, that the corresponding note 
 to the municipal forms of notice 
 of objection (Nos. 3 and 4) (what- 
 ever its meaning may be), does 
 not mean that the parish list 
 should be specified, any more than 
 the note to the parliamentary 
 forms. Martlock v. Farrer, Hall 
 V. Cropper. 20, 29 
 
 See also Amendment, 8. 
 
 OBJECTION. 
 
 See Notice of Objection. 
 
 OCCUPATION. 
 
 As tenant. 
 
 See Dwelling HOUSE. Legal title 
 
 OF Landlord. 
 
 As lodger. 
 See Dwelling-house. 
 
 As servant. 
 See Service Franchise. 
 
 OMISSION. 
 From- list of voters. 
 See Notice of Claim. 
 In list of voters, of part of qualifi- 
 cation. 
 See Amendment, 2, 4, 9. 
 In notice of ohjeetion. 
 See Amendment, 6, 7, 8. Notice of 
 Objection, 2. 
 
 OVEESEEES 
 Have no power to waive by publica- 
 tion a defective date in notice of 
 objection. 
 See Notice of Objection,' 2. 
 
 Cannot by publication dispense with 
 
 proof of due notice of claim It^ 
 
 omitted occupier. 
 
 See Notice of Claim. 
 
IJ^fDEX TO THE PKINCIPAL MATTEKS. 
 
 507 
 
 Do not by defective publication of 
 
 claims duly made render them 
 
 invalid. 
 
 See Publication. 
 
 OXFOED UNIVEESITY. 
 See Eesidencb, 3. 
 
 PAEOCHIAL BELIEF. 
 
 The appellant, having applied to the 
 guardians of the poor for work, 
 was employed by them by way of 
 relief id breaking stones, and paid 
 out of the parish funds for relief 
 of the poor. The payment much 
 exceeded the value of the work, 
 the amount being measured by the 
 guardians, not by the value of the 
 work, but by the wants of the 
 applicant, having regard to the 
 number of his children. 
 
 Held, that this was a receipt of 
 parochial relief which disqualified 
 the appellant. Magarrill v. Over- 
 seers of Whitehaven 448 
 See also Incapacity. 
 
 PAELIAMENTAEY. 
 
 Omission of word ''■ parliamentary" 
 
 from objector's description of himself 
 
 in notice of objection. 
 
 See Amendment, 6. 
 
 PAET OF HOUSE. 
 
 See Dwelling-house. Municipal 
 Franchise. Service Franchise. 
 
 PEACTICE. 
 
 Where an appeal, which the Eevising 
 Barrister had intended to consoli- 
 date (indorsing on the case the 
 words "consolidated appeal") was 
 
 defective by reason of the person, 
 whose name the Eevisiag Barrister 
 had indorsed as respondent, not 
 having consented to answer the 
 appeal on behalf of himself and 
 the othei; persons whose names 
 appeared in the schedule : 
 Held, that such defect, although fatal 
 to the consoKdation of the appeal, 
 under 6 Vict. c. 18, s. 44, did not 
 afiect its validity as a single appeal 
 under sec. 42. 
 Druitt V. Lane. 307 
 
 PUBLICATION. 
 
 The omission by overseers to publish 
 within the time prescribed by Mhe 
 Registration Act", 1885, claims of 
 which they have received due 
 notice does not operate to invali- 
 date the claims. 
 
 Therefore, where claims by occu- 
 piers, and by lodgers not on the old 
 register, had been received by over- 
 seers in due time : 
 
 Held, that the Eevising Barrister 
 was right in revising supplemental 
 lists of such claims, though not 
 published by the overseers until 
 three days after the time pre- 
 scribed for publication. 
 Wells V. Stanforth 451 
 
 See also Notice op Claim. Notice 
 OP Objection, 2. 
 
 QUALIFICATION. 
 Land on trust for sale. 
 1. Where land has been settled upon 
 trust for sale, but remains unsold, 
 a person, entitled absolutely and 
 in possession to a share in the 
 proceeds of the sale, is in equity 
 entitled by implication to a share 
 of the rents and profits of the lapd 
 
508 
 
 INDEX TO THE PKINCIPAL MATTEES. 
 
 until sale, and such interest is an 
 interest in the land itself. 
 Held, nevertheless, that a person so 
 situated, although actually in re- 
 ceipt of his share of the rents, had 
 not such an estate legal or equit- 
 able in the land as would entitle 
 him to be registered as a county 
 voter under 30 & 31 Vict. c. 102, 
 s. 5, so long, at all events, as any 
 person interested under the trust 
 was under disability, so as to be 
 incompetent to elect to keep the 
 land unconverted, since the trus- 
 tees had in such a case a duty to 
 seU, and not merely the power. 
 Spencer v. Harrison. 61 
 
 Shareholders in unincorporated 
 company. 
 
 2. Shareholders in an unincorporated 
 company may, by arrangement 
 among themselves, divest them- 
 selves of any equitable interest in 
 land which they have bought for 
 the purposes of their undertaking, 
 while retaining an interest in the 
 profits. 
 
 Where, therefore, an association 
 of persons l^ad by arrangement 
 among themselves bought land for 
 the purposes of an undertaking, 
 and vested it in trustees upon 
 trusts which gave to the members, 
 so long as the trusts subsisted, no 
 equitable interest in the land, but 
 only in the profits to be made by 
 the use of it : 
 
 Held, although the deed contained 
 powers for altering or revoking the 
 trusts at any time, that, so long as 
 these trusts subsisted, the members 
 of the association had not any 
 
 equitable freehold in the land so 
 ■ as to acquire the county franchise, 
 notwithstanding that the asso- 
 ciation was not incorporated or 
 subject to the restrictions of any 
 Act of Parliament. 
 Watson V. Black. 418 
 
 See also Contemporaneous Occu- 
 pation. Dwelling House. Eent- 
 
 CHAEGB. SebvICB FbaNOHISB. 
 
 EATEABILITY. 
 See Dwelling-house. 
 
 EEDISTEIBUTION OF SEATS 
 ACT, 1885. 
 
 A., a claimant of the borough franchise 
 for a newly created parliamentary 
 borough, had occupied during the 
 qualifying year the two dwelling- 
 houses, in respect of which he 
 claimed, in immediate succession, 
 the first at B., the second at S. 
 Before the passing of the Eedistri- 
 bution of Seats Act, 1885, B. and 
 S. were both within a county 
 division which included the area 
 of the new borough, but the Seats 
 Act had put B. in a new division of 
 the county, and S. in the new 
 borough. Held that A.'s right to 
 be registered as a parliamentary 
 voter at the first registration after 
 the passing of the Seats Act was 
 preserved by sec. 17, and that his 
 claim to a borough vote was good. 
 Down V. Steele. 453 
 
 EEFUSAL. 
 
 By Revising Barrister to state case. 
 See IfoTicB op Claim. 
 
INDEX TO THE PEINCIPAL MATTERS. 
 
 g09 
 
 EENT-CHAEGE. 
 
 Restriction on Franchise, where life 
 interest only, and wttder £5 annual 
 value. 
 
 1. A freehold rent-charge for life is 
 a " tenement," ■within 2 Will. 4, c. 
 45, s. 18, and 30 & 31 Vict. c. 102, 
 s. 5. 
 
 Such rent-charge, therefore, does 
 not confer the county fran- 
 chise unless it be either of the 
 clear yearly value of £5, required 
 by the last-mentioned enactment, 
 or within some one of the excep. 
 tions specified in the former. 
 
 Of such exceptions, that of " ac- 
 tual and bond fide occupation" is in- 
 applicable to a rent-charge, which, 
 being incorporeal, is not a subject 
 of actual occupation. Druitt v. 
 Overseers of Christ Church. 328 
 Value ascertained hy apportionment. 
 
 2. A claimant of the county fran- 
 chise in county K". was the owner 
 of a life rent-charge of £100 per 
 annum, charged upon lands in 
 counties N. and L. The annual 
 yalue of the land in county N. was 
 considerably above £5, but if the 
 rent-charge were apportioned rate- 
 ably to the quantity and annual 
 value of the land in each county, 
 theproportionissuingoatof theland 
 in county N. would be below £5. 
 
 Held; that the value of the rent- 
 charge in county N. was in- 
 sufficient to confer the franchise. 
 Beam v. Watson. 268 
 
 AetvM possession by virtue of Statute 
 of Uses. 
 
 3. Grant of rent-charge by A. to B., 
 
 (a) HopvKbPh. 189; 
 
 C. and D., and their heirs, to the 
 use of the said A., B., C. and D., 
 their heirs and assigns for ever, in 
 equal shares as tenants in common. 
 
 Held, that as A. (not being a 
 grantee to uses) took under the 
 Statute of Uses, B., C. and D. took 
 in the same way, and consequently 
 were (in accordance with the 
 doctrine of Ileelis v. Blain) (a) "in 
 the actual possession'' of the rent- 
 charge, within the meaning of 2 
 Will. 4, c. 45, s. 26, immediately 
 upon the execution of the deed, 
 although they had not in fact 
 received any portion of the rents. 
 Lowcoclc V. Overseers of Brov^hton. 
 
 335 
 EESIDENCE 
 Articled Clark. 
 
 1. Service under articles with a 
 solicitor in London inconsistent 
 with constructive residence within 
 7 miles of Exeter. 
 
 An articled clerk, during the 
 first few days of the necessary 
 period for residence, was complet- 
 ing the service under his articles 
 in London, and during the residue 
 of the period was actually resident 
 within 7 mdes of Exeter in his 
 father's house, where a bedroom 
 was at all times reserved for his 
 exclusive use. 
 
 add, that these facts did not con- 
 stitute the necessary residence 
 within 2 Will. 4, c. 45, s. 31, to 
 entitle the clerk (though in other 
 respects qualified) to be registered 
 as a voter for the parliamentary 
 borough. Ford v. Drew. 1 
 
 S. 0. 18, C. B. N. S. 90. 
 
510 
 
 INDEX TO THE PRINCIPAL MATTERS. 
 
 Soldiers, 
 
 2. Although, in order to qualify un- 
 der sec. 3 of the Representation of 
 the People Act, 1884, a man is 
 required himself to inhabit, his 
 inhabitancy may be constructive, 
 but, in order to make out con- 
 structive inhabitancy, he must 
 show that it was his intention 
 to return after a temporary ab- 
 sence, and that he had the power 
 to return at any time without 
 breach of any legal obligation. 
 
 The claimant, a man in the 
 military service of the Crown, 
 qualified in other respects under 
 sec. 3 of the Representation of the 
 People Act, 1884, by inhabiting, 
 so as to constitute it a " dwelling- 
 house," a room in barracks at 
 Exeter, had during twenty-one 
 days of the qualifying period been 
 absent on duty at Okehampton, 
 and could not duriag that period 
 have returned to Exeter without 
 leave. 
 Held that, there being during the 
 twenty-one days no inhabitancy of 
 the room, in fact, it lay on the 
 claimant to show constructive 
 inhabitancy of it, and that of this 
 there was no proof, although the 
 claimant retained his room at 
 Exeter, and kept his furniture in 
 it, and his wife and family resided 
 there during his absence. Ford v. 
 Barnes. Fovd v. Elmsley. 396 
 
 Oxford and Cambridge Universities. 
 
 3. Students occupying college cham- 
 bers in the universities of Oxford 
 and Cambridge, though at a yearly 
 rental, who during vacation do not 
 
 reside and have no power to do so 
 without permission from the col- 
 lege authorities, are not during the 
 prescribed statutory period in- 
 habitant occupiers so as to entitle 
 them to the franchise. Tanwr v. 
 Carter. Banks and Others v. 
 
 43.5 
 
 RESTRICTION ON POWER OF 
 
 AMENDMENT. 
 See Amendment, 9. 
 
 SEPARATE OCCUPATION. 
 
 See Dwelling-house. Service 
 
 Franchise. 
 
 SERVICE FRANCHISE. 
 
 Service in tJie Army. 
 
 1. There is no authority for the 
 proposition that it is contrary to 
 public policy that soldiers should 
 have votes, soldiers having, in 
 respect to the franchise, always 
 been treated on the same footing as 
 civilians. Sec. 3 of the Represen- 
 tation of the People Act, 1884 
 (dealing with inhabitancy of a 
 dweUing-house by virtue of service), 
 applies to service in the army, 
 and the Crown, if affected, is 
 bound by the statute, being ex- 
 pressly named in it. 
 
 Semhle, however, that the Crown 
 is not affected. 
 
 The claimant, a non-commis- 
 sioned officer in the army, as such, 
 had during the qualifying year in- 
 habited two rooms in a block of 
 buildings within a barrack inclo- 
 sure. An officer, superior in rank 
 to the claimant, lived in the same 
 -block, and the commanding officer 
 
INDEX TO THE PRINCIPAL MATTERS. 
 
 ^n 
 
 in a detached house within the 
 inclosure. The claimant's rooms 
 (which were partly furnished hy 
 the Government) were liable to he 
 inspected at stated times ; also to 
 he entered hy the commandin<j 
 officer at any time, and, for the 
 purpose of enforcing order, hy the 
 superior officer living in the same 
 block. The commanding officer 
 could at any time close the barrack 
 gates ; he could also change the 
 claimant's rooms. 
 
 Held, that the claimant's rooms con- 
 stituted a "dwelling-house," which 
 the cUimant inhabited by virtue of 
 service, within sec. 3 of the Repre- 
 sentation of the People Act, 1884 
 
 Held also, that, on the above facts 
 there was no dwelling-house of 
 which the claimant occupied a part, 
 and the senior officer living in the 
 same block the wliole. 
 
 Held also, that the wliole block was 
 not inhabited hy anyone under 
 whom the claimant served. 
 Atkinson v. Collard. 
 Loim-y V. Collard. 
 Sedgwick v. Neville. 
 Boxall V. Bailey. 
 
 Indudrial Trainer. 
 2. The appellant was employed, as 
 the industrial trainer of a work- 
 house, by guardians of the poor, 
 who allowed him as part of his 
 salary the exclusive use and 
 occupation of a sitting-room and 
 bedroom in the main building of 
 the workhouse. The master of 
 the workhouse, also in the employ- 
 ment of the guardians, resided in 
 other rooms in the workhouse; 
 the guardians reserving another 
 
 VOL. I. 
 
 37.5 
 
 room, which they used as a board- 
 room. The appellant could not 
 stay out of his rooms after 9 pm. 
 without the permission of the 
 master, who after that hour kept 
 the keys of the workhouse, but the 
 master had no power to suspend 
 or dismiss the appellant, but could 
 only report him to the guardians. 
 
 Held first, that the appellant in- 
 habited a "dwelling-house," by 
 virtue of his employment, within 
 sec. 3 of the Representation of the 
 People Act, 1884. 
 
 Secondly, that the workhouse was 
 not inhabited by any person under 
 whom the appellant served, since 
 neither the guardians nor the 
 master could be regarded as in- 
 habiting the whole workhouse. 
 
 Thirdly, that the appellant did not 
 serve under the master. 
 Adams v. Fm'd. 403 
 
 Shop Assistant. 
 
 3. A shop assistant, by virtue of 
 his employment, inhabited, solely 
 and for the qualifying period, a 
 furnished bedroom in a dwelling- 
 house belonging to his employer. 
 Other shop assistants inhabited 
 similarly other bedrooms, and 
 there was a common dining room. 
 The employer did not reside, but 
 exercised control over the house hy 
 a resident, caretaker, and performed 
 the requisite domestic service for 
 the bedrooms and house generally 
 by a resident servant not under 
 the orders of the inmates. 
 
 Held that, notwithstanding the joint 
 user of the dining room, the bed- 
 room was occupied separately as a 
 
513; 
 
 INDEX; TO THE PKtNCIPAL MATTERS. 
 
 dwelling, so as to constitute it a 
 " dwelling-house," within see. 3 of 
 the Eepresentation of the People 
 Act, 1884, and therefore that it 
 conferred the- franchise on the 
 shop assistant. 
 Strihling v. Hulsa 409 
 
 SHOP ASSISTANTS. 
 See Service Eeanchise, 3. 
 
 SOLDIERS. 
 
 (See Sebvicb Fbanohise, 1. 
 
 Rbsidbkce, 2. 
 
 STATUTE OF USES. 
 See Rent-chaege, 3. 
 
 STOCK EXCHANGE. 
 ■See Qualification, 2. 
 
 SUCCESSIVE OCCUPATION. 
 See Amendment, 2, 3, 9. 
 
 TENANT. 
 See DwELLiNG-HousE, 1, 2. 
 
 TENEMENT. 
 
 See Amendment, 10, 11. ' 
 
 Rent-charqe, 1. 
 
 TITLE. 
 See Legal Title of Landlord. 
 
 TRANSFER. 
 See Municipal Franchise, 2. 
 
 TRUSTS FOR SALE. 
 See Qualification, 1. 
 
 UNINCORPORATED COM- 
 PANY. 
 See Qualification, 2. 
 
 UNIVERSITIES. 
 See Residence, 3. 
 
 VALUE ASCERTAINED BY 
 
 APPORTIONMENT. 
 
 See Rent-charge, 2. 
 
 VOLUNTARY ASSOCIATION. 
 See Qualification, 2. 
 
 WAIVER. 
 Sea Notice of Objection, 2. 
 
 WORKHOUSE. 
 See Seevice Franchise, 2.