ing. The shed in question fulfils neither of those conditions. The boards were nailed to the posts for the purpose of performing the part of a shed to create a building, not for any purpose connected with the interest of the occupier. The shed was so frail as to have been destroyed in part before the required year had elapsed. The Legislature intended that building should give the primary qualification, and that land should be a secondary resort, if the building was not worth 10l. per annum. But land would become the primary qualification if a shed of no value, added to land of the required value, was held to qualify. We are aware that the question, whether a building qualifies, is more a question of fact than law, to be answered by the revising barrister performing the part of a jury, in applying the law to the facts before him.

no building at the time of the demise, nor for years after. In 1862 an electioneering agent, having no interest of any sort in the land, caused a shed, made of boards nailed to posts, to be erected, and therein the respondent had kept some agricultural implements; there was no evidence that the landlord had any knowledge on the subject. The revising barrister decided, that this shed was a building within the statute, and that it was occupied by the respondent as tenant; his decision is the subject of this appeal, and I am of opinion that it should be reversed on both points. The Legislature has not defined with clearness the qualification for a vote in a borough. In a county, all that is comprised under the term "land" is the principal source of qualification; but in a borough, land alone does not qualify; it can only be used as an accessory to a building for the sole purpose of making up the value of 101. The intention of the Legislature respecting a qualification for a borough was much considered in Cook v. Humber (11 C. B., N. S., 33). It is there laid down, that a qualification is compounded of four elements-tenement, value, occupapation, and estate. For tenement, there must be a house, warehouse, counting-house, shop, or other building analogous thereto. There must be the annual value 101.; there must be an occupation, that is, the actual exercise of the rights of an owner in possession during the requisite time; and there must be an estate in the tenement, either of fee or less: if these four distinct elements are combined in the plaintiff, he is qualified in respect of property; if otherwise, not. Now, although they must exist in combination in order to qualify, still, in inquiring into the existence of the combination, each element must be separately ascertained-first, is the claimant tenant; secondly, is he occupier: thirdly, is the tenement sufficient in value; and, fourthly, in kind? Again: in pp. 44, 45, it is said, "The statute requires some permanent occupation, and some independent interest in the property; the permanence prevents the sudden creation of votes; the ownership or the tenancy indicates some independence; in other words, the requirement of at least a tenancy excludes some occupations of less independence, cuch as that of servants and objects of charity." As to the kind of tenement which qualifies, the statute describes two classes of buildings—namely, those used for residential, and those used for commercial, purposes; that is, house for residence, warehouse, counting-house, shop, or other analogous building for commercial purposes. To apply these principles to the present case, we think that the so-called building is not of the class specified in the statute; that is, it is neither in the residentiary class, nor in the class connected with commercial industry. We also think, that the claimant's occupation thereof was not in the capacity of tenant. As to the first question, whether the so-called building is sufficient to qualify, we are aware of the impossibility of defining clearly what is included in the class described in the statute by the words" other building," and of the difficulty of affirm ing that a thing is not in a class when the boundary

We are also aware of the soundness of the principle laid down in Watson v. Cotton (5 C. B. 51), that if the revising barrister find the building in question to be within the statute, the Court will make every presumption for the purpose of supporting his finding, and will not reverse it, unless the case shews it to be erroneous. We adopt these principles as sound, still we think that his decision in this case is shewn to be erroneous. The case of Watson v. Cotton has been treated by some text-writers as if it had decided that a tarpaulin supported by poles, as described in the case, was a building, within the statute; and they have drawn wide inferences therefrom, and these inferences are carried to the furthest extent in Lutw. 48, note (a). The learned reporter, in a note, there speaking of this case, thus expresses himself:-"It will not be easy in future to say what is not a building, however slight and unsubstantial the structure may be, provided there be a roof to it" and he goes on to say, that "if a building be capable of holding articles, it may fairly be considered to be a warehouse." And he goes on to say, "that, on these principles, there is no reason why a donkey-shed, a fowl-house, or a pig-sty should not qualify." The report of this case in 5 C. B. 51, does not warrant the inference thus drawn from it. It appears there that the judges, resolving to support the finding of the barrister, unless he states facts shewing that he must have been in error, take his description to be incomplete, and assume that the description, if it had been complete, would have shewn that the shed was a building in the ordinary sense of the word, and was properly included in the same class as "warehouse." In p. 52, Maule, J., says, "The barrister gives a description embracing some of the incidents of a building. He describes two sides of the structure; the rest may be of solid masonry; he does not profess to give a full description of it." C. J., says, it is possible to conceive sheds of a very substantial and valuable character; for instance, the sheds in the docks, which for the most part consist of columns of iron or stone, supporting slated roofs. Then, in his judgment, Wilde, C.J., says, "The barrister having found it to be a building, within the act, we must assume that it has all the requisites of a buildWe are also aware of the immense variety of struc- says, ing, except the incidents he sets out." And Maule, J., "It is not denied that the shed is a building. locality, and the use for which they are adapted in ing, the only question which remains to be decided once it is established that the thing is a buildthe beality. Still we are of opinion that the inten- is, the purposes to which the building is or may be would be without any effect, if everything which said to be a building, within the meaning of the act; words indicating the class of buildings which qualify building such as is mentioned in the act, it may be tion of the Legislature would be defeated, and the put; if it is or may be applied to the purposes of a ought to be in some degree adapted both to be used question. Nobody would for a moment doubt that a by man, either for residence or for the industry to place constructed at great expense, and of great soliof durability which is included in the idea of a build-goods, would be a building within the act." Assume which the statute relates, and also to have the degree dity, closed on two sides, and used for the stowage of

of the class

is unknown.

could be called a

Wilde,

building was held sufficient. It its being more or less substantial cannot affect the

not. It is a question for the revising barrister. The fact that the structure is easily movable makes no dference. [They cited Whitmore v. Bedford (5 Man. & G. 9).]

re

Keane, Q. C., in reply. This structure was movable, and cannot be a building. [He cited Martin v. Poe (7 El. & Bl. 237).] Cur. adv. vult.

proved without shewing that the cattle were actually fed off the toftstead in winter.

This was an action against seven defendants. The declaration was for trespass to a close. The defendthat the defendant Woodall, at the time when &c., ants (who defended jointly) in their fifth plea alleged ERLE, C. J., delivered the judgment of the Court. for thirty years next before this suit enjoyed as of was possessed of a toftstead, the occupiers whereof Upon this appeal two questions are raised; first, right, and without interruption, common of pasture whether the shed described in the case was a building over the said closes and pieces of land, in which &c., in within the statute, that is, whether it had sufficient the declaration mentioned, for all their cattle levant permanence, and was ejusdem generis with the build- and couchant, upon the said toftstead, at all times of ings specified in the statute, that is, house, warehouse, the year as to the said toftstead appertaining; and that shop, and counting-house. The revising barrister the plaintiff wrongfully obstructed the said John found it to be such a building; and according to the Woodall in the enjoyment of the said common of principle laid down in Watson v. Cotton, we do not see pasture, putting up, and at the same time when &c., sufficient in the description he has given to authorise wrongfully keeping, the said posts and rails on the us to reverse his decision. It is constructive of planks said closes and pieces of land, in which &c., over which nailed to posts, let into the ground, and used for the said John Woodall had the said right of common, storing potatoes, that being an article in the way of and thereby prevented him from enjoying the said the claimant's trade of a market gardener. The second question is, whether the shed was occupied by without putting up and destroying the said posts and common of pasture as he was entitled to do, so that the claimant in the capacity of tenant. As to this, the rails, the said John Woodall could not enjoy the said facts are, that at the time of the demise there was no common of pasture; and that the alleged trespasses shed on the premises, but the claimant placed it there and grievances in the first and second counts menduring his term, and used it as above mentioned. The tioned, were respectively committed by the said John revising barrister found that it was so occupied, and Woodall, as such occupier, in his own right, and by we do not see sufficient in his statement to authorise the other defendants, as his servants, and by his comus to reverse his decision. If the shed had become the mand, for the purpose of removing the said obstrucproperty of the landlord, it was occupied by the claim- tions and preventions as they lawfully might, for the ant in his capacity as tenant, although he constructed cause aforesaid, doing no unnecessary damage to the the shed and placed it there during the term; and the plaintiff on the occasion aforesaid. The other pleas general rule is, quicquid plantatur solo solo cedit. It alleged the same right as existing in Lambert, Askham, may be that the shed continued the property of the te- and the two Laveracks, and justified the other defendnant, and was subject to be removed by him at any time ants as their servants. The plaintiffs took issue on during the term. His right to do so might depend on his contract with his landlord, or on the nature of the Assizes, before Blackburn, J., the occupancy of John the pleas also. On the trial, at the Yorkshire Summer construction being such as would make it removable Woodall, and his user of the common for the cattle as a trade fixture; but whatever may be the right of as alleged in the plea, was fully proved, save that it apthe tenant, if further facts were added upon the state-peared that the cattle, as in winter time, were not fed ment made, we rest on the general presumption that from his toftstead, but that he got the food elsewhere; things affixed to the freehold passed to the landlord, although if the land had been used for the production and affirm the decision. The revising barrister has of fodder it would have borne sufficient. Blackburn, raised a further question, whether a pig-sty is a J., ordered a verdict to be entered for the plaintiff, building ejusdem generis with house, warehouse, with leave to the defendants to move to enter the vershop, and counting-house. It is not necessary to an- dict for them on the fifth plea, on the ground that it swer this question, which is only raised in case the shed was found insufficient; but we would add, that was fully proved at the trial. In Michaelmas Term, we are by no means prepared to assent to the revising Field obtained a rule accordingly; against which, barrister's opinion on this point without further dis- Macaulay and Kemplay shewed cause. cussion. We would further add, that the revising barrister has, in our judgment, done good service in sending this and the preceding case to us for our decision, and giving us the opportunity of explaining what we consider to be the true meaning of the Court in Watson v. Cotton, and thereby putting some limitation upon the wide inferences drawn therefrom, contrary in some degree to the intention both of the Legislature, expressed in the statute, and of the judges expounding the same.-Decision affirmed.

COURT OF EXCHEQUER.

HILARY TERM.

Field and P. Thompson were heard in support of the
Cur, adv. vult.
rule.
The judgment of the Court was now delivered by
MARTIN, B.-The present question was reserved

by my Brother Blackburn at the trial of the cause at
York, at the last assizes. The action was trespass
quare clausum fregit. The plea of a defendant, John
Woodall, alleged that for thirty years before the suit he

had enjoyed as of right, and without interruption, common of pasture over the locus in quo for his cattle, levant and couchant, upon a toftstead belonging to him as appurtenant thereto. This was traversed. It was proved at the trial that the toftstead was a close of about two acres in extent; that upon it there was a house or houses which had been used for stalling

[Coram POLLOCK, C. B., MARTIN, CHANNELL, and cattle; but that the cultivated part of the land during

Right of

D.

PIGOTT, BB.]

CARN. LAMBERT and Six Others.-Jan. 18. common appurtenant-“ Levant and couchant" Achim,in a pleat, of a tofistead with right of common rond thirty years turned out their cattle to graze upon appurtenant for cattle levant and couchant, may be the locus in quo; and at the conclusion of the case

the thirty years was occupied as a garden ground, and no part of its produce applied to feed the occupier's cattle. It was further proved that the defendant Woodall and other defendants, owners of the small piece of land in the neighbourhood, had for long be

absence of a clear rule of law to the contrary, we ought to uphold it. The argument for the plaintiff was, that the dominant tenement must, in part at least, be used for the purpose of the production of the food for the commonable cattle; but he failed to support it by any sufficient authority. We, therefore, think that the actual consumption of the produce of the toftstead was not involved in the averment in this plea.

It was alleged, that the plea, being founded on the Prescription Act (2 & 3 Will. 4, c. 71), made a difference, and that although the evidence might have proved the averment in a plea founded upon prescription, properly so called, it did not when contained in a plea grounded upon thirty years' actual enjoy. ment. Upon consideration, we think there is no dis tinction. The defendant, in our judgment, proved that he actually took and enjoyed the rights of common without interruption for the full period of thirty years before the suit, which is all that the statute requires. The rule for entering the verdict for the defendants will, therefore, be made absolute.-Rule absolute to enter a verdict for the defendants.

STONE v. STRANGE.

of promise.

Jan. 31.

Inspection of letters was allowed to a defendant in an ac

tion for breach of promise of marriage.

the learned judge stated that it was clearly established that the owners of these pieces of land (the defendant Woodall included) had as of right, for upwards of thirty years, turned their cattle out upon their respective pieces of land to use the common, but that the cattle had not during this period derived their subsistence from the produce of the piece of land, the alleged dominant tenement; and he doubted whether such cattle were, in law, levant and couchant, and directed a verdict for the plaintiff, giving the defendants leave to move. A rule was granted last term to enter the verdict for the defendants upon the issues joined on the pleas raising the question, and it has been argued. The argument was confined to the case of Woodall. His case was this:-He had a toftstead or close two acres in extent; he had for thirty years as of right, and claiming to have a right of common over the locus in quo, as appurtenant to his toftstead, turned his cattle upon it. The cattle had been housed upon his toftstead, but were not at any time during the thirty years fed upon the produce of it; all their food beyond what was got upon the common being provided from elsewhere. The right claimed by the plea and upon the facts is for a common appurtenant, not a common appendant. No question of surcharge arises, such as has been the point in dispute in most of the cases in which the term "levant and couchant" has been interpreted and explained. Here the number of cattle put upon the common in exer- 17 & 18 Vict. c. 128, s. 50—Inspection of letters-Breach cise of the right claimed is not the question; and the only point we have to determine is, whether, under the circumstances stated to us, any cattle could be levant and couchant in the sense required to make the right of common such a one as the law will recognise. We think that they can. The term "levant and couchant," is a very old legal phrase, and in its primary sense means "when the beast or cattle of a stranger are come into another man's ground, and there have remained a certain good space of time." This is the definition of it in the Termes de la Ley (424); but it is clearly established by the authorities (see note to Mellor v. Spateman, 1 Saund. 346), that, as used in this plea, it means something more, viz. a measure of number, and that it implies within it, that the number of cattle which are alleged to have used the common are such as the winter eatage of the toftstead, together with the hay and other produce obtained from it during the summer, was capable of maintaining. The plea, therefore, when expanded, avers, that from thirty years before the suit the defendant had enjoyed common of pasture for such number of cattle as his toftstead could maintain by its produce, beyond the amount of food obtained by them from the common; and the real question is, whether it further involves that the cattle must have been fed, either wholly or in part, from the produce of the toftstead. We think it does not. All the cases and authorities bearing upon the subject were cited in the argument; and there is in none of them a distinct statement to this effect. The cattle must be levant and couchant in the primary sense of the words, and their number is to be such as the produce of the claimant's tenement would suffice to feed, if cultivated for that purpose. But no authority has been cited which shews that the cattle must actually and in fact be fed upon this produce, provided the test can be applied so as to ascertain the number. Here there is no dispute as to the number. In the absence of express authorities we should not be justified in holding what would, in effect, restrict the right of the person entitled to the common to use his dominant tenement in such manner, and for such purposes, as he may deem most beneficial to him. Primâ facie, it is the right of every man so to do, and in the

This was an action for breach of promise of marriage, in which the defendant had pleaded not guilty, The defendant had made two several applications at chambers for an order to inspect the letters written by himself to the plaintiff, before the breach alleged, and for a discovery what letters written by the defendant were in the plaintiff's hands. These motions were refused at chambers by Bramwell and Channell, BB., respectively. In this term,

H. T. Cole obtained a rule calling upon the plaintiff to shew cause why he should not be at liberty to inspect and take copies of the letters written by him to the plaintiff, or why the plaintiff should not answer in an affidavit, stating what documents she has in her knows as to the custody of such documents, or any of possession or power relating to the cause; what she them; and whether she objects to the production of such as are in her possession, power, and control; and, if so, on what ground.

Prideaux shewed cause.—Neither of the steps desired by the defendant is necessary to his case. It is merely an attempt to scrutinise the case of the plaintiff. [He cited Wigram on Discovery and Shadwell v. Shadwell (6 C. B., N. S., 679).]

H. T. Cole, contra, cited Price v. Harrison (29 LJ, C. P., 335). In the present case the defendant has filed an affidavit, that the production of documents which he seeks for is essential to his defence. It is very frequently the case, that in actions of this sort the correspondence is communicated by one side to the other without the intervention of the Court.

THE COURT, after a short deliberation, made the rule absolute for an inspection.

COURT OF CHANCERY.

Ez parte KEMPSON, re BARKER.-Nov. 23 and Dec. 7,
1864, and Feb. 11, 1865.
Bankruptcy-Principal and agent-Broker's contract-
12 & 13 Vict. c. 106, ss. 177, 178-24 & 25 Vict.
c. 134, s. 153.

W. & Co., who were ironbrokers, contracted to purchase,
on behalf of B., large quantities of iron. According to
the custom of the trade, the names of the brokers only ap-
peared on the contract as the buyers. B. became bank-
rupt before the day appointed by the contract for the
payment of the purchase money; and the assignees having
refused to accept the iron, the broker resold the same,
and sought to prove, against the estate of the bankrupt,
for the difference between the amount paid for the iron
and the sum it realised on the resale:-Held,

First, that there was no liability, on the part of the bank-
rapta, to pay money upon a contingency, within the 178th
section of the Bankruptcy Act of 1849.

Secondly, that the claim was not proveable, under the 177th
section of the same act, because, at the time of the adju-
dication, the bankrupt had not contracted any contin-
gent debt.
And, thirdly, that no proof could be made, under the 153rd
section of the Bankruptcy Act of 1861, because, at the
time of the adjudication, the bankrupts were not liable
for any demand for damages, or in the nature of da-

mages.

This was an appeal from a decision of the commissioner of the District Court of Bankruptcy at Birmingham, whereby his Honor admitted a proof tendered by Messrs. Walduck for the sum of 94761. 118. 2d., against the estate of the bankrupts, Messrs. Barker. The bankrupts were metal dealers at Birmingham, and carried on an extensive business in the purchase and sale of iron. Messrs. Walduck were ironbrokers, and were employed by the bankrupts from time to time to make purchases of iron. Messrs. Barker were adjudicated bankrupts on the 26th February, 1864, at which time Messrs. Walduck had entered into contracts for the purchase of iron to the amount of about 67,000l. By the contract, this sum was to be paid at a day subsequent to the adjudication. By the custom of the trade amongst brokers, the name of the principal is not disclosed by the agent to the seller. The assignees of the bankrupts having refused to accept the contracts, and the price of iron having fallen in the market, Messrs. Walduck resold the iron at a loss of 94767. 118. 2d, and sought to prove against the bankrupts' estate for this sum. The commissioner, by an order made on the 29th August last, decided that the thain was a liability arising upon a contingency, within the meaning of the 198th section of the Bankruptcy Messrs. Kempson, now appealed. Act of 1849, and allowed the proof. The assignees,

1

701); Re Gales (1 De G. 100); Ex parte Harrison, re Gales (3 M., D., & De G. 350); Maples v. Pepper (18 C. B. 177; S. C., 2 Jur., N. S., 739); Boyd v. Robins (5 C. B., N. S., 597); Botteley v. Stainsbury (13 L. J., C. P., 337); and Macdougal v. Patten (8 Taunt. 584).]

Daniel, Q. C., and Little appeared for Messrs. Walduck, the respondents. [They referred to the 177th and 178th sections of the act of 1849, and the 153rd section of the act of 1861, and also to Ex parte Barwis, re Strahan (1 De G., Mac., & G., Bank. App., 542), and Ex parte Harding, re Williams (10 Jur., N. S., 412).] Field, Q. C., in reply.

Cur, adv. vult.

LORD CHANCELLOR.-The bankrupts for some time before their bankruptcy dealt largely in the purchase and sale of iron. For the purpose of this dealing, they employed Messrs. Walduck, who are iron brokers at. Liverpool. By the custom of the trade, the broker in At the time of the adjudication the brokers had, unbuying does not disclose the name of his principal. der orders from the bankrupts, entered into contracts for the purchase of iron to the amount of about. 67,000, to be delivered and paid for at a day which sion of the seller ready for delivery; but as the aswas after the adjudication. The iron was in possessignees did not accept the contracts, the brokers, after fixed for delivery and payment, resold the iron in a the adjudication, and very shortly before the day. falling market, at a price amounting to the clear sum of 57,5231. 88. 10d.; and having paid the difference to the seller, they claimed to prove the balance, amounting, with charges, to the sum of 9476. 11s. 2d. The proof was admitted by the commissioner as coming within the 178th section of the Bankruptcy Consolidation Act, 1849.

The material words of that section are, that “if any trader, who shall become bankrupt after the commencement of this act, shall have contracted, before the filing of a petition for adjudication of bankruptcy, a liability to pay money upon a contingency which shall not have happened, and the demand in respect thereof shall not have been ascertained before the filing of such petition, after the demand shall have been ascertained, he shall be admitted to prove." The enactment refers to engagement upon a future contingent event. The contingency must either expressly or by implication enter into and be contemplated by the contract. In the present case there was nothing of the kind. Immediately on the making of the contracts the brokers became bound to the sellers to pay them the price at the time named for completion. The bankrupts were bound to the brokers to find them the means of doing so. The bankrupts, therefore, had at the time of adjudication contracted a liability to the brokers at a future day, but it was not a liability upon a contingency, that is, upon an uncertain event. It has been held, that if a surety covenants with the creditor, that if the debtor fails to pay, for the assignees, and contended, that the claim was Breon, Q. C., Field, Q. C., and De Gex appeared he, the surety, will pay the debt of demand, there is a liability upon a contingency; it being uncertain bare contract; there was no liability upon a contin- present case there is no liability of the bankrupts to clearly not proveable against the estate. It was a whether the principal debtor will pay or not. In the geney, within the 178th section of the Bankruptcy the seller. the seller, nor were they liable to the brokers, until and the bankrupts are bound to the brokers to find are bound to the seller to pay the price, no default by the bankrupts under the contracts, and is definite to accept and pay for the goods at a certain no suit, either at law or in equity, could have been time before which bankruptcy intervened. I am of sustained against them. The claim was neither a opinion, therefore, that there is no contingency within debt contracted, nor a demand in the nature of da- the meaning of that word as used in the 178th section Act of 1861. [They referred to Thomas v. Hopkins Messrs. Walduck is not proveable under that section. mages within the 153rd section of the Bankruptcy of the Bankrupt Act of 1849; and that the claim of (TC.B.N.S., 711; S. C., 6 Jur., N. S., 301); Ex parte I am also of opinion that it is not proveable under the Mendel, re Moor (1 De G., J., & S. 335); Boorman v.

Nash (9 B. & Cr. 145); Green v. Bicknell (8 Ad. & El. the adjudication the bankrupts, had not contracted with

177th section of the same act, because at the time of

No. 530, VOL. XI., NEW SERIES.

h