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 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, 108. as entrance money was paid. The rents have varied, some having paid 2s. 6d., others 38. 6d., and others 58. 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

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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:

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"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 Coton, 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 Parliament 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 years; and that as often as any part of the lands aforesaid shall from time to time become vacant, the selection of a burgess

for the holding and enjoying the same shall be made by turns, with respect ultimately to the two grounds of preference, provided that in the first instance of selection a burgess shall be selected on the ground of preference first above. named. And it is further hereby provided that if at any time two or more burgesses claiming preference on the ground first above named, shall appear to have been sworn as burgesses on the same day, then the said selection shall be made of such one of the said two or more burgesses as shall be most aged. And that if at any time two or more burgesses claiming preference on the ground secondly above mentioned, shall have happened to have had for six months previous, and up to the said time of selection, and then have, the same number of children at home under the age of ten years, then the said selection shall be made of such one of the said two or more of the said last mentioned burgesses as shall appear by the Freeman's Roll to have been a sworn burgess for the greatest space of time; and if two or more of the said last mentioned burgesses shall appear to have been sworn as burgesses on the same day, then the said selection shall be made of such one of the said last mentioned two or more burgesses as shall be most aged. And it is hereby further by the said council so assembled, as aforesaid, declared, enacted, constituted, and ordered, that if any burgess shall hereafter die in the holding and enjoyment of any part of the said lands, under the ordinances, regulations, and orders hereby made and established, and shall leave a widow, she being a resident within the said borough, shall continue, from the time of the death of her said husband, to hold and enjoy the said part of the said lands, subject nevertheless to the ordinances, regulations, and orders which are or shall be hereafter in force in and for the said borough, with respect to burgesses holding any part of the said lands; as well relating to rent payable for the same, as to all other things whatsoever. And it is further hereby, by the said council so assembled as aforesaid, declared, enacted, constituted, and ordered, that no burgess shall be regarded or considered a poor and necessitous bur

gess, within the meaning of the above ordinances, regulations, and orders, unless he shall be declared so to be by a majority of the council of the said borough assembled, at a regular meeting of the said council. Provided always that no present or future member of the council of the said borough shall be capable of holding or enjoying any part of the said lands so now vacant; or which shall become vacant as aforesaid, so long as he shall continue a member of the said council. And it is hereby further, by the said council, declared, enacted, constituted, and ordered, that all persons whatever, who at this present time hold or enjoy any part of the said lands under the said Mayor, aldermen, and burgesses, shall hereafter pay an advanced rent for the same, and that the amount of the said rent, and times from which the same shall begin to be payable, and at which the same shall in future be payable, shall be respectively fixed and ascertained by the said council, at some future or regular meeting thereof, and that each and every of such persons last mentioned, who shall refuse their consent to hold the said lands, so now occupied by them respectively as aforesaid, at the advanced rent so to be paid and ascertained as aforesaid, shall be ejected from the same by due course of law. And it is hereby further, by the said council so assembled as aforecaid, declared, enacted, constituted, and ordered, that so much, and so many, of all former orders, rules, regulations, enactments, and ordinances, heretofore made and resolved by the Mayor, aldermen, and burgesses of the said borough, and now in force touching the holding, enjoyment, or occupation of the said lands or tenements, or the reservation of the rents and profits thereof, as is and are inconsistent with or contrary to the declarations, enactments, constitutions, and orders hereby made, shall be, and the same is and are hereby repealed and annulled.

"JOHN MASFEN, Mayor."

6. Joseph Abberley obtained possession of an acre in Coton Field as aforesaid, under a resolution of the council and watch committee of the borough of Statford held on the 12th day of June, 1869: "At a meeting of the council and watch

committee of the borough of Stafford held on Monday, the 12th day of July, 1869, ordered and declared that William Taylor, who was sworn a burgess of this borough on the 19th day of November, 1832, and Joseph Abberley who was sworn a burgess of this borough on the 2nd day of January, 1835, are poor necessitous burgesses, resident within the borough within the meaning of the bye-law dated the 28th day of February, 1837.

"Ordered that the acre lately held by Widow Adams be delivered to the said Joseph Abberley, as tenant thereof to the council, and that he do pay five shillings entrance money, and five shillings per annum, as and for rent until further notice, subject to the right of the council to get sand, gravel, and stone therefrom, and under the same, pursuant to the order of the 28th day of April, 1856, the council paying compensation for all surface. damage.'

I decided that the said Joseph Abberley had not freehold in the said land called Coton Field such as would entitle him to a vote for the county, and I disallowed the claim of the same Joseph Abberley, and struck his name out of the said list of voters.*

If the Court be of opinion that my decision was wrong, the register is to be amended by inserting the name of the said Joseph Abberley.

F. T. Streeten (Gorst with him), for the appellant.-The estate which the occupiers of these separate acres have depends on the bye-law set out in the Case. On the true construction of that instrument each burgess, when put into possession, has an estate of such unascertained and uncertain duration that it may last for his life, and, therefore, is a freehold-Co. Lit. 42a, and the notes in 2 Manning & Grainger, p. 19, and 7 Manning & Grainger, p. 45. The order set out in the case is nothing more than the

There were above a hundred other persons whose names were also struck off, and the appeals were consolidated. The objection was raised by a notice of objection, grounded on the third column of the register, and relating to the nature of the interest in the qualifying property.

direction of the council to admit to possession of the vacant acre under the bye-law, and cannot operate to enlarge or vary the terms of the bye-law. The language of the bye-law shews that these acres are given to the respective burgesses selected by the council, for their lives. The provision it contains in favour of widows of deceased occupiers shews an intention in the grantors to create a life estate, conditional only on events which may never happen, such as nonresidence within the borough. The town council cannot of their own mere will alter the bye-law-certainly not so as to affect vested rights. Beeson v. Burton (1) was a stronger case than this; there the grantor had a power of sale, yet the freemen occupiers were held to have a freehold interest in their allotments. In Trenfield v. Lowe (2), the circumstances were similar. There the occupiers were to hold for life, and their widows after them, and it was held they had equitable estates of freehold. The council could not maintain ejectment here, so long as Abberley committed no breach of the conditions.

Gough, for the respondent, was not called upon.

WILLES, J.-I am of opinion that the decision of the revising barrister was right, and should be affirmed. It is a mistake to suppose that this is a case where the occupier has an equitable freehold, and if asked, I should say that the freehold is in the corporation, and is vested in it, to deal with for its own purposes, and not for the purpose of conferring equitable rights on known members of the corporation; in which latter case those members would be entitled to vote as for a frank tenement under the statute of 8 Hen. 6. c. 7. Before we can come to the conclusion that the occupier here was entitled to vote as a freeholder, it must be made out that he had an equitable interest, and that such interest was freehold, and be shewn that he holds as distinct owner, and not merely as a mem

(1) 12 Com. B. Rep. 647; s. c. 22 Law J. Rep. (N.S.) C.P. 33.

(2) 38 Law J. Rep. (N.s.) C.P. 191.

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ber of the corporation. The present case is not like the case of Fryer v. Bodenham (3), where the servitors were appointed for life, and could not be disturbed except for murder, felony, or some analogous cause; but (assuming the case to be one of indefinite occupation) more like Durant v. Kennett (4), where the naval knights of Windsor were held to occupy their respective houses as members, and for the purpose of carrying out the purposes of the corporation, which thus occupied through them, and therefore not to occupy as tenants or owners. Here the enjoyment is as tenant, not as owner. I pass over the custom under which the holder cannot claim, for he must prove an immemorial custom under which the member is entitled to a specific allotment. The foundation of the claim is the order, and indirectly it depends on the bye-law, which is said to be good and valid. The order is that Taylor and Abberley are "poor necessitous burgesses resident within the borough," so that only poor persons are recognised, and the reason for the occupation is, that it is not regarded as a benefit, except in so far as it would discharge the borough from rates, and be an exercise of the rights of the corporation for its own purposes. It then proceeds to say that an acre is to be delivered to Abberley, "as tenant thereof to the council, and that he do pay five shillings entrance money, and five shillings per annum as and for rent till further notice;" meaning that there is to be a tenancy at a yearly rent till notice, and that if the corporation be dissatisfied with the disposal of the land, as for instance, if the tenant ceases to be poor, they might either make him pay a higher and substantial rent, or turn him out. This shews that the order does not confer a freehold interest, but constitutes a tenancy until the corporation chooses to put an end to it. The case of Beeson v. Burton (1) was decided on the ground that the interest was not determinable at the mere will of the deputies who were grantors; but here it is determinable at the mere will of the corporation. As respects the

(3) 38 Law J. Rep. (N.S.) C.P. 185. (4) 39 Law J. Rep. (N.S.) C.P. 17.

bye-law, which is as follows [his Lordship read it], it was competent for the corporation to conclude as to the persons to receive the land under their control for charitable purposes, and to determine as to the commencement, the end, and rent of the occupation. It is clear, first, that the occupier enjoyed as tenant from year to year, and secondly, that there was not an equitable freehold; and that the case does not fall within the authorities in the note in 7 Man. & Gr. at page 45, and certainly I will not be the first to hold that persons receiving the alms of a corporation are to have freehold votes for the county.

BYLES, J.-I am of the same opinion. The order is the title-deed, and that confers only a tenancy from year to year, determinable on a condition; and further, that condition is not in the discretion of the lessee. In Trenfield v. Lowe (2) an express estate was conferred.

BRETT, J.—I am of the same opinion. The attempt to support the present contention of the appellant on the custom fails, for I doubt if a legal custom be stated; but if. it be, the appointment was not within it, for it was made by the council, and not by the mayor. The attempt to support the contention on the bye-law fails, because the persons making it could alter it, and so end the occupation; for if they could make it, as to which I give no opinion, they could repeal it. And if the contention be rested on the order, this order at most creates a tenancy from year to year, though I doubt if it even does this, and whether the interest is more than an appointment till further notice. And it is impossible to imagine anything more mischievous or liable to abuse than the result would be of holding these interests to be freehold, for the result would be that, in contemplation of an election, the majority of the corporation, for party purposes, might create a number of votes for the county. Decision affirmed.

Attorneys-A. Beddal, for appellant; Corser & Fowler, Wolverhampton, for respondent.