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have a new one substituted for it. Mild- 1871.

REGINA V. MORGAN. may v. Smith (7), in Saunders's Reports, Nov. 20.5 is quite a different case from the present

Public Health Act, 1848 (11 & 12 Vict. one. There error was brought upon a decision of the Common Pleas in a scire facias

c. 63), ss. 20, 24-Notice of Voter's Qualiagainst the sheriff to obtain execution

"Owner"-Nomination Paper

fication as against him for 1601., the value of goods

-Description of Nominator. which, according to the return, had been By the Public Health Act, 1848 (11 % seized by him and afterwards rescued. It 12 Vict. c. 63), s. 20, at the election of was held that the sheriff could not in this members of a local board of health, the rateproceeding deny the truth of his return, payers in respect of property in the district, for by the return he had put the plaintiffs and the owners of such property, shall be ento the end of their suit, as they could not titled to vote according to a certain scale ; sue a new execution, except only for the

and any person who is owner and also occusurplus of their debt over and above the pier of the same property, shall be entitled 1601. And in the case referred to in the to vote both in respect of the ownership and note, Clerk v. Withers (8), it was merely occupation ; and no owner shall be entitled held that where the sheriff had returned to vote as such unless, fourteen days at that he had seized goods to the value

least previously to the day of tendering his of the debt, and the execution creditor vote, he shull have delivered to the clerk a died before the sale, the judgment debtor statement in writing of his name and adwas not entitled to have the goods back dress, and containing a description of the again. It is obvious that in neither of nature of his interest in the property creatthese cases is it laid down that the sheriff ing the qualification. By section 24 any is estopped in an action for a false return. person entitled to vote may nominate for the Then we have the authority of Remmett office of member of the local board himself, v. Lawrence (3), where there is a dictum if qualified to be elected, or any other perof Lord Campbell, that if the sheriff son or persons so qualified (not exceeding should return that he had taken the

the number of persons to be elected); and goods of the execution debtor he would every such nomination shall be in writing, be estopped by this statement in an action

and shall state the names, residences, calling, for a false return. But this observation or quality of the persons nomirated, and was not necessary for the decision of the shall be signed by the party nominating, case; and with regard to the two previous

and be sent to the chairman :-Held, that cases, Sir Edward Williams, who refers to the statement of the voter's qualification as them in Levy v. Hcle (4), had no occasion owner cannot be delivered once for all, but to consider the difference between a pro

must be delivered before every election. ceeding where a return is a collateral At an election of members of a local board matter, and one where it is a matter in a nomination paper was signed, A.B. being the same suit.

duly qualified as owner in the district.MELLOR, J.-I am of the same opinion. A. B. was not qualified as oumer, but was Mr. Field referred at the trial to the qualified as ratepayer :-Held, that the cases in Saunders's Reports; and it was

nomination was valid, as the Act did not upon the authority of these cases that I require the qualification of the nominator to granted leave to move, though with much be stated, and the words * as owner" might hesitation. I agree that the case is no

be rejected as surplusage. exception to the ordinary rule, that in an action of tort actual damage must be proved.

Motion for a rule for G. Morgan to Rule discharged.

shew cause why an information in the

nature of a quo warranto should not issue, Attorneys-J. Briggs, agent for J. W. Smith, calling upon him to shew cause by what Nottingham, for plaintiff; Robinson & Preston,

authority he exercised the office of memagents for Berridge & Morris, Leicester, for defendant.

ber of the local board of health for the district of Sheerness.

It appeared from the affidavits that in

September, 1871, there was an election of four members of the local board for the district of Sheerness, under the Public Health Act, 1848 (1), when John Cole


and three others were nominated by A. W. Marks. The nomination paper gave the names, residences, &c., of the persons nominated, and had at the foot of it, “T, being duly qualified to vote as owner in the district, nominate the above to be members of the local board for the district. A. W. Marks.” At the date of the nomi. nation, Marks was the owner of property in Sheerness, and a ratepayer.

In September, 1870, he sent in the particulars required by section 20, to entitle him to vote as owner, and his name was entered in the register, but he had not since then delivered a second statement. The voting papers were collected on September 29, 1871, and the chairman afterwards declared that four persons,

of whom G. Morgan was one, had been elected, and that Cole, although he had a majority of votes over Morgan, was not duly elected, on the ground that his nomination was void, as Marks had not furnished the statement required by the statute, and was therefore not qualified to vote as

The motion previously mentioned was then made by Cole for the purpose

of disputing the election.

Michael, in support of his motion (on Nov. 4), contended that the nomination was good, first on the ground that Marks was entitled to vote, although he had not fourteen days before the election sent in the particulars of his qualification, for his name still remained on the register, and his qualification was the same as it had been when he sent in his notice in 1870. The object of the statute was satisfied by a single notice. Secondly, that the words “ as owner,” might be rejected, for as a fact Marks was qualified as ratepayer, and section 24 did not require that his qualification should be inserted in the nomination paper.

The Court were, however, of opinion that on the true construction of the statute, the particulars given for the election in 1870 were not available for the election in 1871, but that it was necessary to furnish

(1) By the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 13, a fixed number of persons are to be elected by the owners of property and rate. payers, to be members of the local board under the Act.

By s. 20, at every such election the ratepayers, in respect of property in the district for which the election is held, and the owners of such property, shall be entitled to vote according to a prescribed scale.

And any person who is owner and bona fide occupier of the same property shall be entitled to vote, both in respect of such ownership, and of such occupation; and the votes shall be given, taken, collected, and returned according to the directions hereinafter contained ; and the majority of the votes actually collected and returned shall be binding on the district for which the election is had; and whosoerer shall not vote or shall not comply with such directions shall be omitted in the calculation of votes, and be deemed to have had no vote.

And no owner whosoever shall be entitled to vote as such, unless fourteen days at least previously to the day of tendering his vote he shall hare delivered to the clerk a statement in writing of his name and address, and containing a description of the nature of his interest or estate in the property giving the qualification, and a statement of the amount of all rent-service (if any) which he may receive or pay in respect thereof.

By ss. 21, 22, 23, the elections are to be conducted by the chairman of the local board, who is to have power to inspect the rate books, and may causo an alphabetical list of the voters to be made, and give a notico containing certain particulars of the election.

By s. 24 any person entitled to rote may nominate for the office of member of the local board himself (if qualified to be elected), or any other person or persons so qualified (not exceeding the number of persons to be elected), and every such nomination shall be in writing, and shall state the names, residence, calling, or quality of the persons nominated, and shall be signed by the party nominating, and be sent to the chairman. And if the number of persons nominated shall be the same or less than the number of persons to be elected, such persons (if duly qualified), shall be deemed to be elected, and shall be certified accordingly by the chairman under his hand, but if the number so nominated exceed the number to be elected, the chairman shall cause voting papers, in the form contained in the schedule A to the Act, to be prepared and filled up, and shall insert therein the names of all the persons nominated, in the order in which the nomination papers were receired.

The form of voting paper in schedule A has columns for the initials of the voter, names,


residences and quality or calling of the persons nominated, and for the names and addresses of the nominators. At the top are columns for the names and addresses of the voters, and the number of his votes as owner and as ratepayer.


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the statements before every election. On qualification, it will be necessary in every the second ground they granted a rule. case for the officer to see whether the

Merewether (on Nov. 20) shewed cause, nominator is properly qualified, so that and contended that by analogy to

no additional trouble is imposed upon voting paper, the form of which is pre- him. Therefore, although the nominator scribed by the statute, it was necessary has gone out of the way to describe himthat a nomination paper should state self as owner, yet inasmuch as he appears the qualification of the person nomina- to have been duly qualified as ratepayer, ting. If the number of

persons nomi. the description may be rejected as surnated do not exceed that of the persons plusage, and the chairman was bound to to be elected, the nomination virtually receive the nomination. amounts to a vote-Regina v. Parkinson MELLOR, J.-I am of the same opinion. (1), and if it be equivalent to a vote it is If the statute had contained no provision clear that the requirements as to voting whatever as to the form of the nominapapers have not been observed. It is tion paper, there might have been some most unreasonable that after the nomi- foundation for the arguments of the denator has relied upon his title to vote as fendant, but directions are given as to owner, and this qualification has been particnlars which are to be inserted, and found to be insufficient, that it should be the nominator is only required to sign necessary to search the rate book to see the


Then we find that a form is whether he is qualified as ratepayer. prescribed for the voting paper, but not

Michael, in support of the rule, was not for the nomination paper. I think, thereheard.

fore, that there is no foundation for the

argument that the qualification of the COCKBURN, C.J.-I am of opinion that nominator ought to be inserted. the rule must be discharged. The ques- LUSH, J., and HANNEN, J., concurred. tion turns upon the construction of sec

Rule absolute. tion 24 of the Public Health Act, 1848, which is as follows: [His Lordship read Attorney--Brook & Chapman, agents for R. H. the section.] There is nothing in this L. Mole, Sheernoss, for relator; A. Scott section which requires that the person Lawson, for defendant. nominating shall state in what respect he is qualified, but it is required that the name, residence, calling or quality of the person nominated, should be stated in the

THE QUEEN V. SIR S. R. GLYNNE, nomination paper, so that we may assume

1871. that if it had been meant that the person



Nov. 16. FLINTSHIRE, AND nominating should state his qualification, there would have been an express provision to that effect. Mr. Merewether bas

Bastardy Appeal Socond Orderargued that the nomination operates as a Jurisdiction of Justices7 8 8 Vict. c. 101 ; vote, so that the same particulars should

8 & 9 Vict. c. 10.
be required in the nomination paper as in
the voting paper.


be desirable Upon the hearing of an appeal to the that this should be the law, but the legis. Quarter Sessions against an order made by lature has not provided for it. It has also justices in Petty Sessions adjudicating been urged that it is a great trouble for the appellant to be the putative father of a the returning officer, in a case where the bastard child, the respondent, the mother of Dominator is wrongly described as owner,

the child, and witnesses on her behalf were to have to search the rate book to see examined, after which the Court decided whether the description is true. But if that the evidence of the respondent was not it is unnecessary, according to the corroborated with regard to the main issue statute, for the nominator to state his in any material point, and quashed the

order :-Held, that this was a decision upon (1) 37 Law J. Rep. (N.s.) Q.B. 52.

the merits and was final, so that a fresh NEW SERIES, 41.-Q.B.








oriler could not be obtained by the respond- holden at Ipswich, the following caso was ent against the appellant.


CASE. [For the report of the above case, see

This was an action to recover the sum 41 Law J. Rep. (N.S.) M.C. 58.]

of 371. 15s. 7d.

The following are the particulars of the plaintiff's claim delivered in the action:

The plaintiff claims 371. 15s. 7d. for 1871. SWEETING (appellant) v. money payable to the plaintiff for money Nov. 28. TURNER (respondent).

received by the defendant to the use of the plaintiff

. Landlord and Tenant-Rent--Sale by

The plaintiff claims the same sum, for Auction-Liability of Auctioneer.

that on the 3rd day of December, 1870, The plaintif and M. carried on business the plaintiff and one Josiah Garrard in premises rented by M. of 0. Being Matthews being then about to dissolve about to dissolve partnership, their respee. partnership, by the hands of their respective attorneys gave a joint order to the de- tive attorneys wrote and delivered a joint fendant, an auctioneer, to take possession of note, or letter of instructions, to the dethe goods upon the premises, to realise the fendant, in the words and to the effect same with all convenient dispatch, and to following: hold the proceeds as stakeholder until we “We authorise and request you to take shall join in directing you as to the dispo- possession of the stock-in-trade and effects sition thereof." The defendant took posses- belonging to Messrs. Matthews & Sweetsion, and sold the goods by auction, under ing, and to realize the same with all conditions, one of which was as follows : convenient despatch, and to hold the pro" Each lot shall be paid for immediately ceeds as stakeholder until we shall join after the sale and previously to its removal. in directing you as to the disposition Each and all lots shall be taken to be de. thereof." Whereupon the defendant took livered at the fall of the hammer, after possession of the chattels and effects ; and which time they shall remain and be at the on the 7th day of December, 1870, realized exclusive risk of the purchasers, and the the same by public auction, and the net auctioneer shall not be called upon for com.

proceeds thereof, as appearing by the pensation for any injury or loss sustained account stated by the said defendant, after that time.After the lots were sold, amounted to the sum of 761. 68. 10d, but before all had been taken away by the And that on the 10th day of December, purchasers, the agent of C. told the defen. 1870, the plaintiff and the said Josiah dant that he could not allow the things to Garrard Matthews, by the hands of their go until he was paid rent then in arrear. respective attorneys, wrote and delivered The rent was the private debt of M., who a further joint note to the defendant in asked the defendant to pay it out of the pro

the words and to the effect following: ceeds of the sale. The plaintiff

The plaintiff gave the “We direct you to pay the net proceeds defendant notice not to pay the rent, and the of your sale on the 7th instant in purattorneys gave him notice to pay the net suance of our instructions, of the partnerproceeds to the plaintiff, he being entitled ship effects of Messrs. Matthews & to the whole. The defendant paid the rent Sweeting, to Messrs. Aldous & Pearce, to C. and the balance of the proceeds to

on behalf of Mr. G. A. Sweeting, he being the plaintiff :-Held, that the defendant entitled to receive the whole of such net was not justified in paying the rent, and proceeds." Yet that the defendant did that the plaintiff was entitled to maintain not so pay such proceeds, though lawfully an action against him to recover the residue demanded, but wrongfully and contrary of the proceeds.

to such directions paid the said sum of

371. 158. 7d., part of such proceeds, to Upon appeal against the decision of the one Cobbold, for rent, as appears by the Judge of the County Court of Suffolk said account stated, remitting to the

801. per

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plaintiff only the sum of 381. lls. 3d., and that the partners had become exthe balance after such wrongful payment. tremely hostile to each other.

The facts proved on the hearing were On the same 3rd day of December, the as follows:

defendant, in pursuance of his authority, On the 1st day of September, 1870, took possession of the goods, except some the plaintiff and Josiah Garrard Matthews fixtures which the plaintiff claimed as entered into partnership for the term of partnership property, but which Matthews ten years, as auctioneers, carrying on alleged did not belong to the firm. business upon premises known as the Defendant was present at a violent Auction Mart, Upper Orwell Street, altercation between the partners about Ipswich. The deed of partnership was these fixtures. put in. It did not contain any arrange- On Wednesday, the 7th December, the ment about the rent of the premises, defendant, in pursuance of the authowhich were then, and had previously rity of the 3rd December, 1870, held an been, in the occupation of Matthews, as auction at the Auction Mart of the effects tenant, at

annum, payable of which he had taken possession, selling quarterly, on the 1st day of January, the them under certain printed particulars 1st day of April, the 1st day of July, and conditions of sale, containing, amongst and the 1st day of October. Subsequently other stipulations, the following: to the 1st September it was verbally “Each lot shall be paid for immediately agreed between Matthews and the plain after the sale, and previously to its retiff, but without communicating with the moval. Each and all lots shall be taken landlord, that part of the rent should be to be delivered at the fall of the hammer, borne by the firm, Matthews paying 201. after which time they shall remain and be per annum for such part of the premises at the exclusive risk of the purchaser, and as were in his own occupation, and not the auctioneer shall not be called upon for required for the partnership purposes. compensation for any injury or loss sus

Within three months after the com- tained after that time." mencement of the partnership violent The lots, 118 in all, fetched 971. 118. 4d. quarrels arose between the partners; and No single lot fetched 101. After the sale in November last it was arranged between was over but before all the things had them that the partnership should be dis

been removed by the respective pursolved, and the partnership effects sold. chasers, Mr. Henry Sidney, the agent of With this view the following authority the landlord of the premises, stopped the was given to the defendant, an auctioneer, defendant just as he was leaving the mart, residing in Ipswich:

and said he could not allow the things to

go until he was paid the rent then in “Ipswich, 3rd December, 1870. “To Mr. G. A. Turner.

The defendant said he had sold all the “We authorise and request you to take

things and could not pay it without some possession of the stock-in-trade and effects

authority, and both Sidney and defendant belonging to Messrs. Matthews & Sweet

went to speak to Matthews who was on ing, and to realize the same with all con.

the premises, and Sidney said to him he venient despatch, and to hold the proceeds must distrain unless the rent were paid. as stakeholder until we shall join in direct

Matthews said it had better be paid out ing you as to the disposition thereof.

of the proceeds of the sale, and asked 6 For Matthews, A. F. VULLIAMY.

defendant to


it. Defendant without “For Sweeting, R. PEARCE.”

further enquiry, and without seeing This authority was drawn up by the either of the solicitors, Mr. Vulliamy or two solicitors, Mr. Vulliamy and Mr. Mr. Pearce, or the plaintiff, at once said Pearce, in the defendant's office, and he to Sidney he would pay the rent out of was made fully aware that he was to take the proceeds of the sale, and Sidney went possession of the partnership effects, to

The rent then due was hold them against Matthews, as the plain- the private debt of Matthews, and was tiff did not live at the Auction Mart, -401. for a half year's rent, which was in

away satisfied.


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