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description of each house, but only of one being given. If I could see that this was an attempt to introduce what was not intended to be described, I should say there should be no amendment. Here, however, there is but one house, and not a sufficient description; the revising barrister, therefore, should have amended, and his decision ought to be reversed."
KEATING, J.-The object of the legislature was to prohibit the barrister from putting some other qualification on the register, but here the qualification is the same, and there is only a variation in its description made by third persons over whom the claimant has no control, and Luckett v. Knowles (4) is an authority that a wrong description may be amended under the 40th section. No doubt that was a case of a borough franchise, and wrong description of the place of abode, whilst here we have the case of a county franchise, and wrong description in the fourth column of the list, and so far there is a distinction, but the principle is the same, namely, that not only a total omission, but also an erroneous description, may be changed, and that case established the principle that the power of amendment is not limited to a total omission. And it would be strange if it were otherwise. Here it is not found by the barrister that any one would be misled as to the identity of the house, and rightly, as he was satisfied that there was a sufficient identification, but he thought that on the strict words of the statute he had no option, and could not amend. It seems to me that the 40th section may be read to include an error in the description, and that the barrister had power to amend, and if he had power it follows that he here ought to do so, as the qualification is the same.
BRETT, J.-This is a difficult case, but I think that the barrister had power, and was bound to amend; if he had a discretion we ought not to interfere, but I think he was bound to do so. The point of time to which we must direct our attention in considering the present question, is the time when the matter was before the barrister. The description then was inaccurate, for though if the local authorities had no legal power to alter the number, what they did would not alter it, NEW SERIES, 41.-C.P.
still as it appears that they had, the true number of this house was number nine. The third and fourth columns of the list together make up the description of the qualification, the third giving the nature and the fourth the local description of the subject matter of the qualification. At this time the description in the list was an inaccurate description of the qualification, and the case was not one falling within section 101, for the difference was so great that the description on the list could not be commonly understood to mean the house in question, as no one can say that number four would be commonly understood to mean number nine, and, indeed, if it could, the amendment would not be necessary; and the question is whether there was such an inaccuracy as the barrister could (and if so, I think he ought to) amend under section 40, which only could give him power, and if the case be not within that section, there was no such power. I do not think that this was a mistake within the first part of the section, which points to such a case for instance as the overseer having inaccurately copied the register, whereas in the present case the overseer could not alter the four to nine, he would have no power to deal with the matter, nor would the clerk of the peace, and the only person who could was the barrister; and the question is, therefore, whether under the subsequent part of the section the barrister had power. The view I take is thisthat if the inaccuracy amounts to making the description of the qualification a description of a qualification other than that which is to be proved, no evidence can be given to allow an amendment, but if it amounts only to an insufficient description of the qualification to be proved, the barrister can amend. It appears to me that this follows from an examination of section 40. The earlier part of the section is not applicable, but it goes on to say that if the name of any person included in the list, or his place of abode, or the nature or description of his qualification be insufficiently described for the purpose of identification, the barrister is to strike out the name in the absence of evidence to supply the insufficient description. If this insuffici
ency exists, and there be no proof offered to set it right, the barrister should strike out, but if there be sufficient proof he should amend, if the case does not fall within the proviso (a proviso which contains an exception) that "no evidence shall be given of any other qualification than that which is described in the list of voters or claim as the case may be, nor shall the barrister be at liberty to change the description of the qualification as it ap pears in the list, except," which shews there is some case where he may change it, "except for the purpose of more clearly and accurately defining the same," which therefore shews that if the qualification described be so inaccurate as to describe another qualification it cannot be more clearly defined, but that if the description of qualification be not so inaccurate, though insufficient, then the barrister can amend by changing it, so as more clearly and accurately to define it. The question, therefore, is-is this an insufficient description of the qualification? and I should doubt this but for the case of Luckett v. Knowles (4). It has been argued that the description is not insufficient, because it is erroneous and describes something else, but this argument was used in Luckett v. Knowles (4). There no doubt it was the place of abode which was in question, but the place of abode is in the same part of the section as the nature and description of the qualification, and, therefore, the same rule must apply; and as Tindal, C.J., in that case held a wrong to be an insufficient description of a place of abode, the same rule must apply to a description of the nature of the qualification not so erroneous as, to describe a qualification other than that to be proved. Taking that case to govern the present, it is an authority that in this case there was an insufficient description within the section, and if so, on proof the barrister had no discretion, for the statute says he "shall," and he was therefore bound to, amend.
COLLIER, J.-I think that the first words of the section apply to an such as this, namely, putting number four for nine, but this need not be insisted on, because under the second part an insufficient description may be amended. It
is said that the description is not insufficient because it is erroneous, but this is a fallacy, for it may be both. It is then said that the proviso applies, which does not allow evidence of any other qualification, but I do not think that this was another but think it was the same qualifcation. And I, therefore, think that the barrister could and ought to have amended.
Attorneys- Carter & Bell, agents for J. Bendle, Carlisle, for appellant; Johnston & Mounsey, agents for H. Dobinson, Carlisle, for respond
(Appeal from Revising Barrister's Court.) 1871. SIMEY (appellant) v. DIXON Nov. 22. (respondent). J
Under a notice of objection to a person's name remaining on the list of county voters as a freeholder, stating that the objection is to the third column, and relates to his interest in the qualifying property, it may be shewn that the property is within a borough, and gives him such a right to vote for the borough as to disqualify him, under 2 Will. 4. c. 45. s. 24, from having a county
This was a case stated by the revising barrister for the northern division of the county of Durham under the following circumstances.-Objection was taken to the name of W. Cocken on the list of voters for the county, the notice of objection being in the form given by 28 Vict. c. 36, sched. A. no. 2, and specifying the ground thus, "And I ground my objec tion on the third column of the register, and the objection relates to the nature of your interest in the qualifying property." The entry of the nature of qualification in the third column, was "freehold benefice;" and of the street, &c., where situate, &c. in the fourth, was Bishopwearmouth Parish. It appeared in evidence that W. Cocken was the rector of Bishopwearmouth, and the qualification relied on was the parsonage-house, to which he was
entitled in right of his benefice; and it was proposed to prove that it was situate within the borough of Sunderland, and had been occupied for a sufficient time to entitle him to a borough vote. It was objected that the notice did not allow the evidence to be admitted, but the barrister held it did, expunged the name, and now asked the Court whether the notice was sufficient to admit the evidence.
Udall, for the appellant, contended that the objection was only to the fourth column, or at all events ought to be more specific, and cited Bennett v. Brumfit (1). Quain, for the respondent, was not called
WILLES, J.-The decision of the revising barrister was right. The only question is as to the sufficiency of the notice of objection. The right to vote is stated to be in respect of a freehold benefice, which, by the statement of the revising barrister, is limited to the parsonage-house, which appears to be within the borough of Sunderland. The interest in and occupation of this house was such as to give a vote for that borough, and, if the notice of objection be proper, the name was properly struck off under sect. 24 of 2 Will. 4. c. 45. The objection was made under 28 & 29 Vict. c. 36. s. 6, to the nature of the interest, and the notice was this, "I ground my objec tion on the third column of the register, and the objection relates to the nature of your interest in the qualifying property," and I reject the notion that the present objection was one which could be taken to the fourth column, and the revising barrister was clearly right. This notice of objection was to the third column, and the interest, and it distinctly pointed to the evidence offered, for part of the nature of the interest is that the occupier should not have a right of voting for the borough which would take away his right for the county under sect. 24, and to this the notice is specifically pointed.
BYLES, J.-I am of the same opinion. The notice points to the third column, in which are the words freehold benefice, which the finding of the revising barrister sets up and explains to mean the par
(1) 38 Law J. Rep. (N.s.) C.P. 65.
sonage-house, the sufficiency of which is not before us.
BRETT, J.-The objection is not to a claim, but a name on the list and register. Under 6 Vict. c. 18, the objection was to be in the form in the schedule A (5), which was a general notice. This was thought not to be sufficient, and to alter this 28 & 29 Vict. c. 36, s. 6, was passed, which is as follows: "Any notice of objection to any person on the list of claimants for any parish or township may be given according to the provisions of the seventh section of the principal Act," that is, to a claim the notice may still be general, "but, with that exception, no notice of objection given under the provisions of the said seventh section, other than a notice to the overseers, shall be valid unless”—i.e. if the person is on the list the notice to the overseers is to be as before"unless the ground or grounds of objection be specifically stated therein," and if the section stopped there it might be said the notice should be specific, but it goes on, "and this provision shall be deemed to be sufficiently satisfied by naming the column or columns of the register on which the objector grounds his objection," which shews that to some columns a statement of the column is enough, and then it proceeds, "provided always that if the objection be grounded on the third column, then it shall be necessary to state in the notice whether the objection relates to the nature of the voter's interest in the qualifying property, or to the value of the qualifying property, or both," so that he must say the objection is to the interest or value or both. Therefore a notice of objection to the third column is to be more specific; if the objection be to the other columns it need only name the column, if to the third, then notice that the objection is to the interest or value is sufficient. . It is said this objection ought to be to the fourth column, but an objection to that column would be that it has not given information, but here it is not found that the description therein is wrong or insufficient, and therefore the objection would be futile. But the objection is to the nature of the interest, that it is such as not to give a county but a borough vote; that is an objection to
Previous to the Municipal Corporation Act, 1835, the mayor, aldermen, and burgesses of S. were possessed of certain land, and the custom and practice of the mayor, &c., was that each member of the common council should have two acres for his life, and his widow after his decease, so long as she remained such widow and resided in the borough, but that non-residence, or receipt of parish relief, should be a forfeiture; and that the other acres should be distributed by the mayor among such persons as he selected, to be held on the same tenure and customs, certain small entrance fees and yearly rents being paid. In 1836 it was enacted by a bye-law of the corporation that in future, as vacancies occurred, this land should only be held by poor burgesses entitled to vote at the parliamentary election for the borough and their widows, resident within the borough; that they should occupy only one acre, at a rent to be from time to time fixed by the council, which was to declare whether they were poor; that the then present holders should pay an advanced rent to be fixed by the council, and should be ejected if they did not pay it; and that all former inconsistent orders, &c., as to this land should be annulled. One J. A. was, by order of the council, given possession of an acre as a poor burgess, as tenant thereof to the council," paying a certain entrance fee, "and five shillings per annum as and for rent until further notice," subject to the right of the council to dig sand, &c.:-Held, that he had no such freehold interest as entitled him to a county vote as a freeholder.
This was a case stated by one of the revising barristers for Staffordshire.
The following facts were established by the evidence:
1. The Mayor, aldermen, and burgesses of the borough of Stafford, for many years previously to the passing of the Municipal Corporation Act, 1835, were possessed of certain land situate within the said borough, and known by the name of Coton Field.
2. Before the year 1835 the custom and practice of the said Mayor, aldermen, and burgesses, with regard to the occupation of the said land, was as follows: Each member of the common council, usually cal'ed the corporation, had two acres for his life, and his widow, after his decease, so long as she continued such widow, and resided in the borough. But a non-residence in the borough, or the receipt of parochial relief, was a forfeiture of the holding. The other acres, as they became vacant by death or forfeiture, were distributed by the Mayor for the time being, one each to be held by those persons that he selected, for the same tenure and under the same customs as those above described. If the acre was in tillage, 58. was paid by each person to the treasurer of the corporation, as entrance money, on taking possession. If in grass, 10s. as entrance money was paid. The rents have varied, some having paid 2s. 6d., others 3s. 6d., and others 5s. a year.
3. The Municipal Corporation Act superseded the old charter under which Stafford became a corporation.
4. In the year 1836 a bye-law was enacted to point out the manner in which the corporation of the borough of Stafford should deal with the Coton acres.
5. The following is the bye-law referred to in the last paragraph
Borough of Stafford to wit.
"At a quarterly meeting of the council of the borough of Stafford, held this 9th day of February, 1836, at the Mayor's office, within the said borough, two-thirds of the whole number of the said council being present (then followed the names):
"It is now by the said council, so assembled as aforesaid, declared, enacted, constituted, and ordered as follows:
"Whereas the Mayor, aldermen, and
burgesses of the said borough, for many years now last past, to wit, from the 12th day of January, in the fourth year of the reign of our late Sovereign Lady Queen Anne, have been entitled to the fee simple and inheritance of and in certain lands and tenements near the said borough, situate in the manor of Cotón, commonly called the Coton Field, subject nevertheless to a certain perpetual annual rent charge, amounting to the sum of twelve pounds, now payable to the Right Honourable Charles Chetwynd, Earl Talbot; and also to a certain perpetual annual payment, amounting to the sum of twentysix pounds, for the maintenance of certain almshouses in the said borough. And whereas certain crders, rules, and ordinances have been heretofore, from time to time, made and resolved by the said Mayor, aldermen, and burgesses of the said borough, touching the holding, enjoyment, and occupation of the said lands and tenements, under the said Mayor, aldermen, and burgesses, and the reservation of the rents and profits of the same, under and by virtue of which orders, rules, and ordinances, the said lands and tenements have heretofore and are now held and enjoyed by certain persons (except as hereafter mentioned) in certain divisions or portions, each amounting to an acre, more or less, under the said Mayor, aldermen, and burgesses. And whereas certain parts, to wit, two acres of the said lands and tenements, are at this time unoccupied by any tenant or holder thereof under the said Mayor, aldermen, and burgesses; and it is proper and expedient that reasonable and wholesome rules, ordinances, and regulations and orders should be made and established respecting the future holding and enjoying of the said parts of the said lands so now unoccupied, and further respecting the future holding and enjoying of all such parts as shall hereafter become vacant; and further respecting the future reservation of the rents and profits of such parts of the said lands and tenements, as are now held, occupied, and enjoyed as aforesaid, under and by virtue of the former orders, rules, and ordinances before mentioned: Therefore it is now, by the said council of the said borough so assembled
as aforesaid, hereby declared, enacted, constituted, and ordered, that the said parts of the said lands called Coton Field, which are now unoccupied as aforesaid, and all such parts thereof as shall become vacant, shall in future be held and enjoyed by no other persons whatever than the poor and necessitous burgesses of the said borough, by birth or servitude, duly qualified to vote for members of Parlia ment for the said borough; or the widows of such burgesses, the said burgesses and widows being respectively resident within the said borough. And it is hereby further, by the said council so assembled as aforesaid, declared, enacted, constituted, and ordered, that no one burgess, or widow of a burgess, as aforesaid, shall hereafter hold or enjoy more than one acre of the said lands now vacant, or which hereafter shall become vacant, under the said Mayor, aldermen, and burgesses. And it is hereby further, by the said council so assembled as aforesaid, declared, enacted, constituted and ordered that such lands shall be held and enjoyed at a certain rent, payable therefor to the Mayor, aldermen, and burgesses of the said borough, the amount thereof and days of payment to be fixed and ascertained by the council of the said borough, from time to time, as occasion shall require, at the reasonable discretion of the said council. And it is hereby further, by the said council so assembled as aforesaid, declared, enacted, constituted, and ordered, that for the purpose of selecting from the said poor and necessitous burgesses, proper persons for the holding and enjoying the said lands under the said Mayor, aldermen, and burgesses, two grounds of preference shall hereafter exist and be maintained, to wit, one ground of preference shall be in favour of that burgess who shall appear by the Freeman's Roll to have been a sworn burgess for the greatest space of time; and the other ground of preference shall be in favour of that burgess who, for six months previous, and up to the time of selection, shall have had, and then have, the greatest number of children at home under the age of ten and that as often as any part of years; the lands aforesaid shall from time to time become vacant, the selection of a burgess