The

CRESSWELL, J. It may be that one of the claimants might be found to have an interest in land, and, as to others, that the gift is to the corporate body. circumstances affecting each claimant are different. Each case depends upon a different state of facts, as in Prior, [48] App., Waring, Resp. I think we are bound by that decision, and must decline to hear this case.

Hindmarch. The principal question,--and that upon which each case must depend, is, whether the parties have a freehold interest in land, of the yearly value of 40s. It would be scarcely possible to find cases so exactly alike in their circumstances as to present no point of difference.

CROWDER, J. In Barclay, App., Parrott, Resp., post, p. 49, no less than sixty-two votes depended upon the decision in the principal case, the whole being alike in point of fact, and all involving the same single question of law.

Montague Smith (with whom was Manisty), for the respondent, was not called

upon.

CRESSWELL, J. We are bound by the case referred to. This appeal must be dismissed.

The rest of the court concurring.
Appeal dismissed.

[49]

BOROUGH OF MACCLESFIELD.

JOSEPH BARCLAY, Appellant, THOMAS PARROTT, Town Clerk of Macclesfield, Respondent. Nov. 14, 1856.

[S. C. 26 L. J. C. P. 77 ; 3 Jur. N. S. 672; 5 W. R. 75.]

A notice of objection to a borough vote, sent by post in the manner prescribed by the 6 & 7 Vict. c. 18, s. 100, need not on the face of it shew the voter's place of abode.

At a court held for revising the lists of voters for the borough of Macclesfield, on the 30th of September, 1856, Joseph Barclay objected to the name of Matthew Lea Burgess being retained on the lists of voters for the township of Macclesfield in the said borough.

The stamped duplicate notice of objection was as follows:

"Notice of objection.

"To Mr. Matthew Lea Burgess.

"I hereby give you notice that I object to your name being retained on the list for the township of Macclesfield of persons entitled to vote in the election of members for the borough of Macclesfield. Dated this 25th day of August, 1856.

"JOSEPH BARCLAY, of No. 2 Peel Street, 96 Park Terrace, Park Lane, on the list of voters for the township of Macclesfield."

The duplicate was addressed on the back, as follows:

"Matthew Lea Burgess,

"13 Park Street, Macclesfield."

The notice of objection was sent by post, open.

It was urged by or on behalf of Burgess that the duplicate did not on the face of it shew his place of abode, although it appeared on the outside of both.

The revising-barrister held that this objection to the notice was good, and did not call upon Burgess to prove his qualification; nor did he offer to do so.

[50] The name of Burgess, and also the names of sixty-two other persons, who were objected to in the same manner and by the same party, and whose cases were consolidated with the principal case, were retained on the list, the revising-barrister holding the notice of objection to be insufficient.

The question for the opinion of the court was, whether the above notice of objection was sufficient; if the court should be of opinion that it was, the names of Matthew

Lea Burgess and those of the sixty-two other persons referred to were to be expunged from the register.

Welsby, for the appellant. The notice of objection in this case was sufficient, and the decision of the revising-barrister was wrong. [Cresswell, J. Is there any section in the 6 & 7 Vict. c. 18, which requires the residence of the person to whom the notice is sent to be shewn upon the face of it?] In the case of counties, the form No. 5, in schedule A., requires the insertion of the "place of abode as described" in the list or register; but, in boroughs, the form No. 11 in schedule B. requires no such thing. The only question is whether the objector has properly complied with the 100th section, which enacts that "it shall be sufficient, in every case of notice to any person objected to in any list, &c., if the notice so required to be given as aforesaid shall be sent by the post, free of postage, or the sum chargeable as postage for the same being first paid, directed to the person to whom the same shall be sent, at his place of abode as described in the said list of voters." Here, the notice was so directed. [Cresswell, J. And the party received it.] And he appeared. The clause goes on to provide, that, "whenever any person shall be desirous of sending any such notice of objection by the post, he shall deliver the same, duly directed, open, and in duplicate, to the [51] post-master of any post-office where money-orders are received or paid, within such hours as shall have been previously given notice of at such post-office, and under such regulations with respect to the registration of such letters, and the fee to be paid for such registration (which fee shall in no case exceed 2d. over and above the ordinary rate of postage), as shall from time to time be made by the post-mastergeneral in that behalf; and, in all cases in which such fee shall have been duly paid, the post-master shall compare the said notice and the duplicate, and, on being satisfied that they are alike in their address and in their contents, shall forward one of them to its address by the post, and shall return the other to the party bringing the same, duly stamped with the stamp of the said post-office; and the production by the party who posted such notice of such stamped duplicate, shall be evidence of the notice having been given to the person at the place mentioned in such duplicate on the day on which such notice would in the ordinary course of post have been delivered at such place." All that has been duly complied with. The revising-barrister was probably misled by the case of Birch, App., Edwards, Resp., 5 C. B. 45. There, however, the objection to the copy served was, that it was not a duplicate at all. Here, it was.

Byles, Serjt., for the respondent. This case, it is submitted, is disposed of by that referred to,-Birch, App., Edwards, Resp.,-where it was held, that the service of a notice of objection by post, under the 6 & 7 Vict. c. 18, s. 100, was not proved by the production of a stamped copy similar in all respects to the notice left with the post-master save that it had no external address; such copy not being a stamped duplicate, within the meaning of the act. [Cresswell, J. In that case the supposed duplicate had no address at all.] None on the outside: [52] and the court held both to be necessary. Williams, J., says: "If the notice is to be sent by the post, it cannot be said to be duly directed for that purpose, unless it also bears an external address." The act of parliament requires the notice to contain the place of abode of the person objected to. [Cresswell, J. The form No. 11 in schedule B. does not, as the form No. 5 in schedule A. (which is applicable to county voters) does.] There certainly is that difference between the two forms, though it is not easy to assign a satisfactory reason for it.

The

CRESSWELL, J. There is nothing in the act of parliament, or in the form given in the schedule of a notice of objection to a borough voter, to render it necessary to mention the voter's place of abode. The appeal must, therefore, be allowed. result of this decision being to take away the franchise from the several parties objected to, that is an additional reason for not giving costs (a).

The rest of the court concurring,

Appeal allowed, without costs.

(a) See 17 C. B. 315, n.; ante, pp. 22, 33; post, p. 62.

[53] BOROUGH OF ASHBURTON.

JOHN HANNAFORD, Appellant, WILLIAM ROLSTONE WHITEWAY, Respondent.
Nov. 14, 1856.

[S. C. 26 L. J. C. P. 75; 3 Jur. N. S. 673; 5 W. R. 75.]

A notice of objection sent by post, pursuant to the 100th section of the 6 & 7 Vict. c. 18, is not vitiated by the fact of the post-master having received it out of the usual hours of business prescribed by the postmaster-general.

At a court held for the revision of the lists of voters for the borough of Ashburton, William Rolstone Whiteway objected to the name of John Hannaford being retained on the list of voters for the parish of Ashburton.

The facts of the case were as follows:

The objector, being a person qualified to object, gave due notice of objection to the overseers; and he sought to prove service of the notice of objection on the party himself by post under the statute 6 & 7 Vict. c. 18, s. 100. All the provisions of that section were strictly complied with, except as to the time when the duplicate notices were delivered to the post-master.

The objector delivered the duplicate notice to the post-master of the post-office of Ashburton, at 6 o'clock in the morning of Monday, the 25th of August, 1856. He produced before the revising-barrister one of the duplicates bearing the Ashburton post-mark of the 25th of August, 1856; and he proved that the notice would in the ordinary course of post have been delivered on that day at the place to which it was addressed.

During the month of August, 1856, the Ashburton post-office was open to the public, on week days, from 7 o'clock, A.M. until 50 minutes past 3 o'clock, P.M.; and it was not compulsory on the post-master to register any letter except within those hours. Public notice was given at the office that these were the hours of business.

The hours for receiving the duplicate notices under [54] 6 & 7 Vict. c. 18, s. 100, are the same as those for registering ordinary letters.

It was contended, on behalf of the voter, that the delivery of the duplicate notices to the post-master before 7 o'clock, A.M., not being within the regular hours of business, was irregular; that, before the stamped duplicate could be produced in evidence, the objector was bound to prove that he had complied with all the provisions of the 6 & 7 Vict. c. 18, s. 100, and, amongst other things, that he had delivered the notices to the post-master within the hours appointed for the transaction of that business; and that, as he failed to prove this, the stamped duplicate could not be received as evidence. of the notice having been given as required by the act.

The revising-barrister was of opinion, that, as the post-master had consented to receive and compare the notices, although delivered to him at an hour when he was not bound to do so, the statute had been sufficiently complied with; and he decided that the notice of objection was duly proved. He therefore called upon the voter to prove his qualification; which he failed to do; and the revising barrister thereupon expunged his name from the list.

If the court should be of opinion that the delivery of the duplicate notice to the post-master at the time above stated was not sufficient within the meaning of the statute 6 & 7 Vict. c. 18, s. 100, the name of the voter John Hannaford was to be restored to the list.

Kinglake, Serjt., for the appellant. The provisions as to notices of objections, in the case of borough voters, are contained in ss. 17, 40, and 100, of the 6 & 7 Vict. c. 18. The 17th section enacts "that every person whose name shall have been inserted in any list of voters for any city or borough, may object to any other person as not [55] having been entitled on the last day of July next preceding to have his name inserted in any list of voters for the same city or borough; and every person so objecting shall, on or before the 25th day of August in that year, give or cause to be given a notice, according to the form numbered 10 in the said schedule B., or to the like effect, to the overseers who shall have made out the list in which the name of the person so objected to shall have been inserted, or, if the person objected to shall have been inserted in the list of freemen of any city or borough, except the city of London,

then to the town-clerk of such city or borough; and every person so objecting shall also give or cause to be left at the place of abode of the person objected to, as stated in the said list, a notice according to the form numbered 11 in the said schedule B. ; and every notice of objection shall be signed by the person objecting." The 40th section amongst other things enacts, that, "where the name of any person inserted in any list of voters shall have been objected to by the overseers or by any other person, and such other person 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 to have his name inserted in the list of voters in respect of the qualification described in such list; and, in case the same shall not be proved to the satisfaction of such barrister, or in case it shall be proved that such person was then incapacitated by any law or statute from voting in the election of members to serve in parliament, such barrister shall expunge the name of every such person from the said lists." And then comes s. 100, which provides, that, "whenever any person shall be desirous of sending any such notice of objection by the post, he shall deliver [56] the same, duly directed, open, and in duplicate, to the post-master of any post-office where moneyorders are received or paid, within such hours as shall have been previously given notice of at such post-office, and under such regulations with respect to the registration of such letters, and the fee to be paid for such registration (which fee shall in no case exceed 2d. over and above the ordinary rate of postage), as shall from time to time be made by the postmaster-general in that behalf; and in all cases in which such fee shall have been duly paid, the postmaster shall compare the said notice and the duplicate, and, on being satisfied that they are alike in their address and in their contents, shall forward one of them to its address by the post, and shall return the other to the party bringing the same, duly stamped with the stamp of the said post-office; and the production by the party who posted such notice of such stamped duplicate shall be evidence of the notice having been given to the person at the place mentioned in such duplicate on the day on which such notice would in the ordinary course of post have been delivered at such place." Thus, the statute points out various modes of serving notices of objection. The service may either be personal, or by leaving the document at the place of abode of the person objected to as stated in the list, or the person objecting may avail himself of the mode of service pointed out in s. 100. But, if the person objecting chooses to adopt this latter course, it is clear, that, as between him and the person objected to, the latter has a right to have a notice transmitted in strict accordance with the provisions of the act; all the conditions which the legislature has, for sufficient reasons no doubt, thought fit to impose must be complied with. The production of such stamped duplicate, that is, a stamped duplicate with reference to which all the conditions have been complied with,-is made evidence of the original notice having reached the hands of the [57] person objected to according to the ordinary course of post. It is not for the court to say whether that which the act of parliament requires is wise or not the only question is, whether the conditions annexed to this mode of service have been strictly and properly complied with. matter underwent considerable discussion in Bishop, App., Helps, Resp., 2 C. B. 45, the judgment in which case contains almost all that can be said upon the subject. There, a notice was posted, under s. 100, in sufficient time to reach the party, according to the ordinary course of the post, on the 25th of August; and it was held that such service was sufficient, notwithstanding that the actual delivery was accidentally delayed until the 27th. In delivering the considered judgment of the court, Tindal, C. J., says: "It was argued, on the part of the respondent, that the true construction of. this section was, that it should be sufficient if the notice was effectually sent, that is, sent and delivered. And there is no doubt that this would be sufficient: but it would, at the same time, be unnecessary to have this provision, which is a very special one, in order to make such a sending sufficient; for, there is no doubt that any sending and delivery, by a servant or otherwise, by which the notice came to the voter, would be sufficient by the 7th section. It is, therefore, evident that some privilege is meant to be conferred by s. 100 on a mode of dealing with the notice which is so carefully provided for. The notice must be delivered at a select description of office; within certain hours; the postage must be paid; it must be registered, and the fee for registration must be paid; it must be delivered to the post-master, open, and in

The

duplicate; compared; stamped; and the duplicate returned. And we think the meaning of the act is this,-when all these conditions are complied with, such a sending shall be a sufficient substitute for what the 7th section required to be done, that is, a sufficient substitute for [58] giving the notice to the person objected to, or leaving it at his place of abode." This privilege is not to be extended to one who has failed to comply with any one of the conditions. Another part of the judgment shews that this very objection was present to the mind of that learned judge: for, he says, "If this be the true construction of that part of the section which provides what sending is sufficient, it follows that the objector has done all that the act requires him to do, to enable him to call on the voter to prove his right, whether the notice arrived or not, and whether it was prevented from arriving by insufficient description of the place of abode or by default of the post-office. So that, supposing, as was insisted for the respondent, that the evidence of the stamped duplicate is not conclusive as to arrival, and was answered by proof to the contrary, as it was here, it makes no difference as to the right of the objector; as the fact so disproved is not material to his right. The stamp on the duplicate is clearly evidence of the posting on the 24th; and there was no contradiction as to that fact; so that, whatever might be the consequence if it had been shewn in evidence that the notice was not really posted on the 24th, as the proof stood, all the facts constituting a sufficient sending were proved without contradiction." The same determination was come to in Bayley, App., The Overseers of Nantwich, Resp., 2 C. B. 118, in the case of a notice of claim, which was duly posted at Manchester on the 19th of July, and ought according to the ordinary course of post to have been received by the overseers at Nantwich on the 20th, but, in consequence of extraordinary pressure at the post-office, had been delayed until the 22nd. Toms, App., Cuming, Resp., 7 M. & G. 94, 8 Scott, N. R. 910, 1 Lutw. Reg. Cas. 200, also shews how rigidly the court will inquire whether the conditions on which the stamped duplicate is to be received in evidence have been complied with. There, the original [59] notice was signed by the objector himself, in accordance with s. 17, but the copy was signed by an agent in his name. [Cresswell, J. And therefore it was held not to be a duplicate.] statute is no less positive as to the hours of posting the notice, than that it shall be delivered to the post-master in duplicate. Birch, App., Edwards, Resp., 5 C. B. 45, is important with the same view: the stamped copy offered in evidence was a perfect duplicate in all respects, save that it had not the external address which appeared on the original. An external address was required only by s. 100. The notice would have been perfectly good without it, if served personally or at the place of abode. But the court held a strict adherence to the directions of the statute to be requisite. [Cresswell, J. The first part of s. 100 enacts that "it shall be sufficient, in every case of notice to any person objected to in any list, &c., if the notice so required to be given as aforesaid shall be sent by the post, free of postage, or the sum chargeable as postage for the same being first paid, directed to the person to whom the same shall be sent, at his place of abode as described in the said list of voters." Suppose the person objecting proved that such a notice was sent by post, addressed to the voter, and that the voter received it in due time,-would that be sufficient?] It would still be necessary to give notice to produce the original, in order to let in secondary evidence of its contents. [Cresswell, J. I assume all that to have been done, and that the postman proves the delivery.] That probably would be a sufficient notice under s. 17. The proof by means of the stamped duplicate, however, can only be resorted to where the conditions imposed thereon by the legislature have been strictly observed. In Godsell, App., Innous, Resp., 17 C. B. 295, a notice of objection to a county voter was addressed "to the overseers of the parish or township of B.," without adding the county, as required [60] by the 6 & 7 Vict. c. 18, s. 101. The overseers having acted upon the notice, although it did not appear when it reached their hands,-it was contended, on behalf of the objector, that the overseers had no right thus to waive the performance of a condition required by the statute: and the court seemed to think the argument well founded. [Cresswell, J. The Lord Chief Justice seemed to consider that the party had an interest in the objection.] If the court should hold that it is competent to the post-master to extend the time limited for the reception of these notices, it might be enabling him to extend facilities to one political party to the prejudice of the other.

Byles, Serjt., contrà, was stopped by the court.

CRESSWELL, J. It appears to me that there is nothing whatever in the objection