saying, that it was allowable to alter the poll, if the party had not left the booth, the polling-clerk, in the absence of the mayor, altered the poll. The poll-clerk, in his evidence, represented the vote given for Russell to have been recalled almost instantaneously, but admitted it to have been entered on the poll.

After hearing Mr. Talbot and Mr. Serjeant Merewether, the Committee resolved,-" That the poll remain as at present recorded."

Mr. Russell then retired from the contest, and the Committee reported that Mr. Palmer was duly elected.

1838.

CASE XX.

KINGSTON UPON HULL.

The Committee were chosen on the 15th of March 1838, and consisted of the following Members :

:

Sir George Strickland, Bart. (Chairman), Yorkshire, W. R.

Electors in the interest of Messrs, Hutt and Wood.

Counsel Mr. Hill, Q. C., Mr. Austin, and Mr. Rushton.
Agent Mr. Crouch.

Sitting Members-W. Wilberforce, Esq. and Sir W. C. James, Bart. Counsel Mr. Thesiger, Q. C., Mr. Hildyard, and Mr. Wrangham. Agent-Mr. Stephens.

The property specified in the statement of qualification delivered in by Mr. Wilberforce was objected to, as not giving to Mr. Wilberforce an estate for his own life, either in law or in equity, of the annual value of 3007. within the meaning of 9 Anne, c. 5. The recent statute, 1 & 2 Vict. c. 48, renders the questions which were raised inapplicaable to future cases; but we think it right to mention them, on account of the contradictory opinions written

upon them by eminent conveyancers. Mr. Wilberforce claimed the property in question under the limitations of his father's will.

The following is a brief abstract of the principal provisions of the will relating to the property in question. Those provisions commenced by giving a general power of sale to trustees, without power in any one to control or restrain them. Power to the trustees to revoke all the uses and trusts of the will. Declaration, that the trustees shall have power to sell without any further concurrence notwithstanding any rule of law or equity to the contrary, and that the receipt of the trustees should be a good discharge to purchasers. The trusts of the purchase monies were to pay the testator's debts and legacies, and then to invest the surplus in the purchase of estates to be settled to the uses of the will, with an intermediate direction for placing the monies out at interest. Then followed a charge of 500l. a-year on the real estates, and subject and without prejudice to the powers and charges before contained. The testator gave his freehold real estates to the uses following, viz.-To the use, that the trustees might receive the last-mentioned annual charge of 500%., and subject thereto to the use of the said William Wilberforce for ninetynine years, if he shall so long live, without impeachment of waste, with remainder to the use of trustees during the life of the said William Wilberforce, upon trust to pay over the rents and profits to the said William Wilberforce, with divers remainders over.

Mr. Humphry (1) took two objections. 1st. That Mr. Wilberforce had not an equitable freehold of the value of 300l. a-year. He contended that in all cases where a person was possessed of a legal chattel interest in possession, with an equitable freehold in remainder, the two estates remained distinct. That if the chattel interest (1) Who appeared merely to argue the question of qualification.

1838.

1838.

were of such a nature as to continue after his death, it passed to the executor and not the heir; that such chattel interest was liable to be taken in execution like other personalty, and that for all purposes it was personal and not real estate. That Mr. Wilberforce's income arose out of the chattel interest for ninety-nine years, and not out of the equitable remainder. The 2nd objection was that the power of sale and declaration were unusual, and had the effect of making the estate defeasible.

Mr. Thesiger contended, 1st. That Mr. Wilberforce was entitled to the rents and profits for life, and had virtually an equitable freehold in possession. 2nd. That there was no solid distinction between the power of sale which overrode Mr. Wilberforce's estate, and the ordinary powers of sale which were to be met with in the titles of half the land in the kingdom.

Resolved.-That Mr. Wilberforce was not duly quali

fied.

The most important of the decisions of this Committee, were on questions of treating, respecting which they adopted strict rules, and rigidly adhered to them. Towards the close of the case, after eighty-four voters had been struck off from the poll of the Sitting Members, Mr. Hutt being at the head of the poll, and Mr. Wilberforce nine votes a-head of Sir W. C. James, the counsel for the Sitting Members stated that Sir W. C. James was in a minority of one below Mr. Wood. (1) The counsel for the Sitting Members then proposed to attack the poll of their opponents, but were met by the following novel objection. The names of the petitioners were Frank Rawson, George Binckes, the younger, and John Bickerton, the list of votes objected to on behalf of the Sitting Members, purported to be in the matter of a petition of Frank Rawson, Georges Binckes, the younger, and George

(1) Printed Minutes of Evidence, p. 469.

Bickerton. It was argued on behalf of the petitioners that the difference between the names in the petition and those in the heading of the lists, was a fatal variance, and of that opinion were the Committee. The counsel for the Sitting Members then stated that Sir W. C. James was not in a minority, but that both parties were equal; it was contended on the other side, that he was bound by his previous statement, and the question was referred to the Committee, who directed the short-hand writer's note of what had occurred to be read, (1) but declined to interfere. The petitioners then proposed to strike off another vote from the poll of the Sitting Members, but it was objected that there was a similar clerical error in the heading of their lists, which was a fatal variance from the petition. The name of one of the petitioners was stated in the petition to be George Binckes, "the younger;" he was described in the heading of the list of the petitioners merely as George Binckes; the Committee held the variance fatal. An arrangement was then come to between Sir W. C. James and Mr. Wood, by which Sir W. C. James was allowed to put ten votes on the poll, which were alleged to have been tendered for him, without any evidence being offered; he thus placed himself in a majority over Mr. Wilberforce, and the Committee reported that W. Hutt, Esq., and Sir W. C. James had been duly elected.

(1) Printed Minutes of Evidence, p. 473.

1838.