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 enioying 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. 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.

In

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.

I pass

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. 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, 66 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.

Where the nature of a person's right to vote in the parliamentary election for a borough is inserted in the list as "dwellinghouse," he is not bound to prove a qualification under 30 & 31 Vict. c. 102. s. 3, but may shew he is qualified to vote in respect of a "house under 2 Will. 4. c. 45. s. 27.-So held by the majority of the Court (WILLES, J., KEATING, J., and COLLIER, J.), BRETT, J., dissentiente.

99

Semble, that no amendment is necessary, but that the claimant must prove that the house is a dwelling-house.

This was a case stated by the revising barrister for the borough of Marylebone.

CASE.

The facts as proved before me were: 1. One James Blackman (the retention of whose name in the list of voters for the borough of Marylebone had been duly objected to) had occupied jointly with another person the premises in respect of which his name had been inserted by the overseers of the parish of Saint Marylebone (comprised within the said borough) in the lists of persons entitled to vote in the election of members to serve in Parliament for the said borough of Marylebone.

2. The said James Blackman had so occupied the said premises during the twelve calendar months next previous to the last day of July last, had been rated in respect of the said premises for all rates for the relief of the poor in the said parish made during the time of his occupation, had duly paid all the poor rates and assessed taxes which had become payable from him in respect of such premises previously to the 6th day of April then next preceding, and bad resided for six calendar months next previous to the last day of July last within the said borough.

NEW SERIES, 41.-C.P.

3. The clear yearly value of the said premises so occupied by the said James Blackman and another was of an amount, which, when divided by the number of the joint occupiers of the said premises, gave a sum of much more than ten pounds for each occupier.

4. In the said parish of St. Marylebone the overseers make out only one list of all persons entitled to vote in the election of members to serve in parliament for such borough, including in such list as well those entitled to vote in respect of the occupation of premises of the clear yearly value of not less than ten pounds under the Act of Parliament passed in the second year of the reign of King William 4. c. 45, as those entitled to vote as inhabitant occupiers, as owners tenants, of any dwelling house within the said borough under the Representation of the People Act, 1867.

or

5. In the list so made out by the said overseers, the qualification in respect of which the name of James Blackman was inserted in the list was described in the third column as a dwelling-house, the house in fact was originally constructed, and is now used as a shop, with dwellingrooms above.

It was objected that, inasmuch as the qualification, in respect of which the name of James Blackman had been inserted in the list as made out by the said overseers, was described as a "dwelling-house," his title to have his name inserted in such list could only be under the third section of the Representation of the People Act, 1867, and as it was by that section provided that no man should under that section be entitled to be registered as a voter by reason of his being a joint occupier of any dwelling-house, that, therefore, the said James Blackman was not entitled to have his name inserted in the said list.. I held that if the nature of the qualification was insufficiently described, I had power to amend the description of the qualification, for the purpose of more accurately defining the same, and I did so by substituting house for dwellinghouse, as the nature of the qualification, and retained the name of the said James Blackman.

The question upon which the judgment

E

of Her Majesty's Court of Common Pleas is requested, is whether or not I, the said barrister, did or did not rightly decide that the said James Blackman was entitled to have his name inserted in the register of voters for the said borough of Marylebone. If the Court be of opinion that my decision was wrong, the name of the said James Blackman is to be removed from the register of voters for the said borough of Marylebone.

Gorst, for the appellant.-The question is whether, under 6 Vict. c. 18. s. 40, this alteration could be made, and it is submitted that it could not. The word "dwelling-house" is the word used in the new Act to describe the new franchise given by it, which is in addition to and not in substitution of the franchises conferred by the old one. And this being so, the evidence given was evidence of a qualification other than that described on the list, and consequently, by the terms of section 40, could not be admitted and allow of an amendment. Assuming even that the word "dwelling-house" would be a good or amendable description under the old Act before the new one passed, still afterwards it would not be so, because then it would describe the new franchise, and would mislead-it would lead persons to think the franchise claimed was the new one, to make enquiries as to the fulfilment of the conditions of the new franchise, and to neglect enquiries as to the fulfilment of those of the old one.

No one appeared for the respondent.

WILLES, J.-I think that the decision of the revising barrister was right. Whether it was right to amend it is unnecessary to say, but it did no harm, though I think it was unnecessary. A claim to vote in respect of a dwelling-house would be made out by shewing that the claimant was entitled to what was in fact a dwelling-house (which the claimant here did), coupled with proof either of the conditions required under the Act of 1832 in respect of a house, or of the conditions required by the Act of 1867 in respect of a dwelling-house. The statute of 1832 gave a right in respect of a house, and it is not necessary to look far into the cases to

:

find an instance of a house which was not a dwelling-house; the word house was treated as applying, though the house was not a dwelling-house; then the term house contains both a house which is a dwelling-house and one which is not, and whilst the Act of 1832 only was in force, when it was necessary to state the nature of the qualification, if a man stated it to be a "dwelling-house" he would have given an unnecessarily particular description of the house, just as if he had described its colour, and this, perhaps, could be rejected, perhaps not, though I think that if he used the word "dwelling-house" he could not reject the word "dwelling," but would be bound to shew that the house was a dwelling-house. Therefore, if the claim were made under the Act of 1832 he would start with proving he had a house which was a dwelling-house (only a too particular description to satisfy this statute), and would then go on to prove the conditions required by the Act of 1832 the value in the present case brought it under section 29, and the claim and description were quite good for a dwelling-house under the Act of 1832. Then comes the Act of 1867, which was to enlarge the franchise, and which is. said to have the effect of defeating the claim which was sufficient to satisfy the Act of 1832, and after that Act the question is, to my mind, unarguable, and the claimant must succeed. The Act was one to enlarge the franchise, and yet it is argued that it is to have the effect of defeating it. It is said that the Act of 1867 gives the franchise for a dwellinghouse on conditions less stringent, as, for instance, in respect of value, accom panied, however, by a restriction as to joint occupancy, and it is said that the Act of 1867, giving a new claim as to a dwelling-house, makes a distinct franchise, and that, where a description is required, "dwelling-house" necessarily means claim under the Act of 1867; and reference has been made to section 59, which enacts that the two statutes are to be read together, to shew that the use of the word "dwelling-house" specifies this claim to be in respect of a qualification under the Act of 1867. But it is a fallacy to say that, because a