house. Again, were the hall always open to the street, without any street-door, or having a street-door which lay open night and day, I apprehend the shop-door must under such circumstances be deemed the claimant's outer-door: and, is the transaction substantially varied by the street-door, which lies open all day, being at night locked for the protection of the inmates, the claimant himself having the key of that door in his own possession? I apprehend not. There are such street-doors at some of the English chambers, and yet the separate residences are deemed separate houses. For the doctrine applicable to this case, see Lee v. Gansel, Cowp. 1, Hopkins v. Nightingale, 1 Esp. N. P. C. 98. The claimant's shop in this case opens into a hall, and within a few feet of the street-door; that hall-door lies open the whole day, and is locked only at night. The landlord does not reside in the house. The claimant has a key for the hall door: there is no *507] person who can control or abridge his right of exit and of entrance through this hall; and to me, therefore, it appears to be substantially the same thing as if the claimant's shop-door opened at once into the street." The present case is a stronger one even than that; for, here, the door seems to have been altogether abandoned as an outer door.

Overend, Q. C. (with whom was Fawcett), for the respondent.-This case is governed by Cook, app., Humber, resp., 11 C. B. N. S. 33 (E. C. L. R. vol. 103). The appellant is the occupier of "part of a house," without any actual severance from the rest of the structure. That clearly constitutes no qualification. This is not like the case of a common staircase, such as those leading to chambers in the Inns of Court. The circumstance of there being or not being an outer door, or of the tenant having a key, can have nothing to do with the question. [WILLIAMS, J.-It is a matter which is not to be lost sight of] In Wilson, app., Roberts, resp., 11 C. B. N. S. 50 (E. C. L. R. vol. 103), the respondent occupied "offices" in the city of London, comprising the whole of the first floor of the house (his residence being within the required distance), and was rated and assessed, and had paid all rates and taxes in respect of the premises. The landlord occupied the shop on the ground-floor of the house, and with his family resided on the upper floor thereof. There were two outer doors to the house,one opening from the street into the shop, the other into a passage communicating with the staircase leading up to the first and upper floors. The door opening from the street into the passage had only one lock, of which the respondent and the landlord each had a key. It was held that the respondent was not qualified to vote as tenant of a "house" within the 2 W. 4, c. 45, s. 27, the "subject of occupation" *5081 being a part of a house," which part had not become by actual severance an entire house in any sense of the word. It is utterly impossible to distinguish that case from the present. As to Bryan Kearney's Case, all that can be said is, that it is in direct conflict with Cook, app., Humber, resp., and Wilson, app., Roberts,

resp.

*

Kinglake, Serjt., in reply.-There is no conflict between Kearney's Case and Cook, app., Humber, resp. Wilson, app., Roberts, resp., is a totally different case: there was no severance there; and the roonis held by Roberts could not in any sense be said to be 66 a house," and it was

not stated to be a "shop," "warehouse," or "counting-house," but "offices" only. If the party had described it as "counting-house," he would probably have been held entitled to be registered: see Downing, app., Luckett, resp., 5 C. B. 40 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 33. ERLE, C. J.-I am of opinion that the decision of the revisingbarrister in this case was wrong, and that the claimant obtained his franchise. I think he was occupier of a "house" within the meaning of the statute and of our decision in Cook, app., Humber, resp. He occupied the whole of the upper floor, which communicated with the landing on the staircase by an outer door over which he had the exclusive control. The case finds that there are other floors occupied by other tenants, and a common passage from the staircase to the entrance, with a door, which, if ever closed, was only closed by falling to, without any lock or fastening of any description. In Cook, app., Humber, resp., the court felt great difficulty in coming to any clear and definite determination as what will constitute a separate "house," where the subject of occupation forms one of several tene[*509 ments all under one roof. But they felt themselves under the necessity of holding, that, as there might be several houses under one roof, so they might be divided, either vertically by a party-wall, or horizontally by floors, each floor becoming a separate house. If a house has been divided by floors or flats into several distinct tenements, there would be great complication and difficulty in holding that the franchise of the several occupiers might be destroyed by the addition of an outer door. The court, therefore, came to the conclusion that every flat might constitute a separate house, and that the whole might have the additional protection of an outer or street-door without preventing each from being still for this purpose a separate house. That having been laid down in the course of the judgment, and the cases of chambers in the Inns of Court and of flats having been considered, the court endeavoured to point out that the question whether or not the subject of occupation constituted a separate house did not depend upon the presence or absence of the laudlord, or the possession by the tenant of a key of the outer door; but they endeavoured as far as possible to point out that there must be an actual severance and reference was made to Kitchin on Courts 99 (5th edit. 92), to the observations of Parke, B., in Monks v. Dykes, 4 M. & W. 567, and Evans and Finch's Case, Cro. Car. 473, and The King v. Great and Little Usworth, 5 Ad. & E. 261 (E. C. L. R. vol. 31), 6 N. & M. 811. Downing, app., Luckett, resp., 5 C. B. 40 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 33, seems to be an authority to the same effect. A more definite description of a "house" I am unable to give. Upon the finding of the revising-barrister here, there seems in this case to have been as complete a severance of the rooms occupied by the appellant as there is in the case of chambers in the Inns of Court, *where there is sometimes the additional circumstance of an [*510 outer door, and sometimes not. The party has exclusive possession of the floor occupied by him, and exclusive control over the outer door of that floor. As to the case of Wilson, app., Roberts, resp., 11 C. B. N. S. 50 (E. C. L. R. vol. 103), there was not the least distinction between the case of the tenant there and that of any other ordinary lodger. The doctrine which we attempted to lay down in

Cook, app., Humber, resp., appears to be sanctioned by the opinion of the twelve judges in Ireland in Bryan Kearney's Case. For these reasons I am of opinion that the appellant gained the franchise here, and that his appeal must be allowed.

WILLIAMS, J.-I am of the same opinion. I feel bound to abide by the doctrine which was laid down after much deliberation in Cook, app., Humber, resp., that the occupation of part of a house may give the franchise, if there be independent occupation and complete severance between such part and the remainder of the house. Regard being had to the several decisions which have taken place upon this subject, it is impossible to deny that it is very difficult to define what is an actual severance. In the case of chambers in the Inns of Court, it is conceded on all hands that there is complete severance. The rights of the occupiers of chambers in the Inns of Court would not, I apprehend, be varied if a gate or an iron railing were placed at the common entrance, in order to protect the staircase against intruders. I do not see how the occupation here differs in any material degree from that of chambers in one of the Inns. By analogy to those cases, it seems to me that there was such a severance here as to entitle the appellant to be registered.

*KEATING, J.-The cases certainly run very close, and the *511] distinction between them is necessarily very fine. Looking at the facts found by the revising-barrister, I have come to the conclusion, though not without difficulty, that the appellant was the occupier of a "house" within the meaning of the 27th section of the Reform Act. The only door which the revising-barrister speaks of as an outer door, is, the door leading from the rooms in the appellant's occupation, and over which he had exclusive coutrol. Practically, there was no other outer door. There is, it is true, at the bottom of the staircase, a thing which is in some sense a door, but which wants all the essential elements of an outer door,-"having no lock or fastening of any kind, nor any means of being so closed as to secure the premises from intrusion from the street." It is as though the outer door were taken off its hinges and left lying at the side of the door posts. I think the revising-barrister very properly abstained from calling that the "outer-door." Upon these facts, I am of opinion that there is such a complete actual severance of the part occupied by the appellant from the rest of the premises as to constitute a "house," within the rule laid down by this court in Cook, app., Humber, resp., and the requirements of the 27th section of the Reform Act.

Decision reversed.

*Borough of ASHBURTON.

[*512

GEORGE CAUNTER, Appellant; JOSEPH ADDAMS, Respondent. Nov. 21

One Y. was on the 21st of April, 1859, duly elected by the vestry assistant-overseer of the parish of A. (which is co-extensive with the borough), at a salary of 18. 58. per annum, and bis election was duly confirmed by an appointment of justices on the 30th of August. In March, 1861, Y. gave notice to the guardians of his "intention to resign," but he subsequently withdrew it; and on the 25th of that month it was resolved at a vestry meeting that his salary should be increased to 301. There was no confirmation of this increase of salary by the justices, or any new appointment of Y. by them. He, however, continued as before to perform all the duties of the office of assistant overseer :--

Held, that service upon Y. of a notice of claim under the 30th section of the Reform Act was a good service.

AT a court held to revise the list of voters for the borough of Ashburton, George Caunter objected to the name of Joseph Addams being retained in the list of persons entitled to vote in the election of a member for the said borough.

The borough of Ashburton is co-extensive with the parish. There are two church wardens and four overseers.

At a vestry meeting of the parish of Ashburton held on the 21st of April, 1859, Stephen Yolland was nominated and elected to be an assistant-overseer of the said parish under the provisions of the 59 G. 3, c. 12, by a resolution which was in the following words,

"That Mr. Stephen Yolland be appointed the assistant-overseer, at a salary of 157. per year, and at a further salary of 31. 5s. for the making and collecting of way-rates: and that his office be to transact all the duties of an overseer, and to perform all journeys within eight miles without charge, being paid for the extra distance beyond eight miles a fair mileage; and that the sureties he had proposed be accepted, viz. Henry Tozer, Esq., and Mr. Charles Yolland."

On the 30th of August, 1859, the election of Stephen Yolland was confirmed by a warrant of appointment by the justices in petty sessions, of which the following is a copy,

"Devon, to wit. Whereas, the inhabitants of the *parish of [*513 Ashburton, in the county of Devon, in vestry assembled in the said parish on the 21st day of April, 1859, did nominate and elect Stephen Yolland, of the said parish of Ashburton, in the county of Devon, a discreet person, to be assistant-overseer of the poor of the said parish, and did determine that the duties to be by himn executed and performed should be all such duties as appertain to and are incident to the office of an overseer of the poor, and did fix the yearly sum of 15%. as and for the yearly salary of the said Stephen Yolland for the execution of the said office: Now, we, the undersigned, being two of Her Majesty's justices of the peace in and for the said county of Devon, in pursuance of the statute in such case made and provided, do hereby appoint the said Stephen Yolland to be assistant overseer of the poor of the said parish of Ashburton: And we do hereby authorize and empower him to execute and perform such duties and to receive such salary as aforesaid fixed by the said inhabitants in vestry. Given under our hands and seals this 30th day of August, 1859, at Newton Abbot, in the county of Devon."

(Signed and sealed by two justices.)

Subsequent to this election by the parish vestry, and before his appointment by the justices, the said Stephen Yoiland gave the usual bond to the guardians of the Newton Abbot union (of which union the parish of Ashburton forms part) for the due performance of his duties.

Some time before the 25th of March, 1861, Stephen Yolland gave notice to the board of guardians of the said union of his intention to resign the office, but he did not give notice to any one else. Prior, however, to Lady Day, he withdrew this notice, by letter addressed to the board of guardians. Yolland's nomination and election were not by the board of guardians, but by the inhabitants in vestry.

*On the 25th of March, 1861, a vestry meeting was held at *514] Ashburton, pursuant to notice, "to take into consideration the necessity of advancing the assistant-overseer's salary;" and at that meeting the following resolution was passed,

"It having been proposed by Mr. Whiteway, and seconded by Mr. Priddis, that the salary of the assistant-overseer be increased to 251, and that 51. be paid him in addition for the making and collecting way-rates, in lieu of 31. 5s., and an amendment having been moved by Mr. W. K. Batten, and seconded by Mr. Mortimore, that the salary be not increased, it was carried by a majority, and resolved, that the salary should be increased according to such proposition.

(Signed) "R. G. ABRAHAM, Chairman."

From that time to the present, Mr. Yolland has continued to per form all the duties of assistant-overseer, and has received the in creased salary of 25l. per annum, but has never applied for or received any fresh warrant of appointment of justices.

On the 15th of November, 1862, the said Joseph Addams and other the under-mentioned voters served a claim on Stephen Yolland to be put upon the then existing rate, which was the first rate for the electoral year, at which time all arrears of rates in respect of the property on which they claimed to vote were paid to him as such assistant-overseer. They were not put upon that rate, but were put upon all subsequent rates, which rates, as well as the existing rate, were duly made and allowed by the justices, and also signed by Stephen Yolland as assistant-overseer. Stephen Yolland made out, and in conjunction with the churchwardens and overseers signed the list of voters for the borough of Ashburton for the present year.

At the revision of the said borough, the name of the said Joseph Addams was objected to as not being *qualified, upon the *515] ground that he was not duly rated, and that the claim to Stephen Yolland was of no effect, inasmuch as his appointment was revoked by the vestry of 1861.

The revising-barrister held that the claim to be rated to Stephen Yolland was a valid claim, and overruled the objection; whereupon the said Joseph Addams duly proved his qualification, and his vote was allowed.

This decision governed the cases of twenty-two other claimants, which were consolidated with the principal case.

If the court should be of opinion that the service of the claim on Stephen Yolland was not a due service of a claim to be rated, within the 30th section of the Reform Act, the names of Joseph Addams