larger right as respects a dwelling-house is given by the Act of 1867, therefore the word "dwelling-house" is to restrict to one under the Act of 1867, though by law, in respect of a dwelling-house, a man may claim under the Act of 1832, as for a house, or under the Act of 1867 as for a dwelling-house. The true result is to treat the franchise under the Act of 1867, not as a totally distinct franchise, but as an expansion of "house" to "dwellinghouse," and I am also of opinion that if the claimant fails under the Act of 1832, he may have recourse to the Act of 1867, and vice versa. The description of the qualification and nature of the claim is the same, and I reject the notion that the Act of 1867 has the effect of taking away a right under the Act of 1832. I think that no amendment was necessary, as I gather was the barrister's opinion, though he made it, and that he was right in retaining the name.

KEATING, J.—I am of the same opinion. The Act of 1867 leaves untouched the Act of 1832. Under the Act of 1832, by 'dwelling-house" a man could prove a qualification in respect of a house; this is conceded, but it is said that the Act of 1867 does away with this, and makes such an alteration as to deprive him of his right, because the Act of 1867 gives the franchise to a certain sort of dwellinghouse which did not before confer it. This would be a strange result, though still if it were so we should have to accept it, but I think this is not so. It was here proved in terms that there was a dwellinghouse, such as would confer the franchise under the Act of 1832, and therefore no amendment was necessary.

ant used as description one of these terms, he could not prove a qualification specified by another; if he claimed as for a shop, and the proof was that he so occupied rooms with it as to make it a house, he would fail. What then is the effect of the Act of 1867? By this Act a new qualification is given, not by occupation of a house, but inhabitancy of a dwellinghouse, and as by section 59 it is expressly enacted that the statutes are to be construed as one, it is exactly the same as if the new qualification were in section 27, and the meaning is that the description of the qualification is to be as if it were in the old Act, and as if section 27 were "house, dwelling-house, warehouse, &c." I apprehend that if the description of the qualification were dwellinghouse," the claimant could not prove this by means of a "house." It is said that this takes away a right, but it does not affect any right of the claimant; the question is, whether he has rightly described his qualification, and if he has described another, then, by the very decision which we have just delivered in Bendle v. Watson (1), he cannot have an amendment and prove it. The reason given in the cases why, under section 27, the proof of qualification must be thus restricted, is, that otherwise persons would be misled, and that the Court are bound to care as much for the objector as the claimant; and here the description would almost inevitably mislead, for a man, if on enquiry he found the house was not a dwelling-house or the occupancy joint, would stop, and then, before the barrister, he would find his objection held bad, because a qualification was proved under the Act of 1832, under which there is no necessity for dwelling personally, and joint occupancy is allowed, but there must be a certain value as to which he has been thrown off his guard and not inquired. I think it clear that in the present case there was a description of another qualification, and that the revising barrister

BRETT, J.-I unfortunately differ from the rest of the Court, and as the parties are entitled to the opinion of each member of the Court, I am constrained to say that I think that the revising barrister was clearly wrong. Under the statute of 1832, different qualifications are given under section 27, namely, "house, warehouse, counting-house, shop, or other building," and though in fact several of these terms include some of the others, yet it has always been held that though this is so, as the Act separates them as matter of description, if the claim

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was wrong.

COLLIER, J.-It seems to me clear that the decision was right, and that no amendment was required. The claimant was

(1) Ante, p. 15.

entitled to the franchise under section 27 of the Act of 1832, as the occupier of a house, and is he to be deprived of this because he has described his house as a dwelling-house? It is a house, and the only effect is that he may have to prove more than required by the statute, and have to prove it was occupied as a dwelling. It is said that the word describes a new qualification under the Act of 1867, but as this is in addition to the old ones, the description is not the worse for describing the new one, even supposing that it does describe it, but this is not so, for the new one is given to an inhabitant occupier of a dwelling-house, and here the claim does not say anything about inhabitancy, and therefore this is not a description under the new Act.

Decision offirmed.

•--

freehold qualifications, described the nature of his qualification in his notice of claim to the overseers, as "house": Held, a sufficient description of a quali fication in respect of the occupation of a house of the annual value of 10l., but that if necessary for more clearly describing it, the Revising Barrister had power, under section 40 of 6 & 7 Vict. c. 18, to amend it by inserting the correct description in the list of voters.

It was proved to the satisfaction of the Revising Barrister, that the overseers duly published a list of persons claiming to have their names inserted in the lists, as

This was a consolidated appeal from the decision of the Revising Barrister for the city of Exeter.

At a Court held before the said revising barrister, Robert Saunders Ganniclifft claimed to have his name inserted in the occupation list for the parish of St. David. Brutton John Ford (the appellant) objected to such name being so inserted.

It was proved to the satisfaction of the revising barrister that the said Robert Saunders Ganniclifft sent to the overseers of the said parish a notice of claim in the words and figures following:

claim. [The case set forth a copy of such list as published by the overseers.]

•

It was also proved to the satisfaction of the Revising Barrister, that the said R. S. Ganniclifft was, on the 31st day of July last past, entitled to have his name inserted in the said list in respect of the occupation of a house in the said parish of the clear yearly value of not less than 107.

Exeter is a city and county of itself, having reserved rights of voting as freeholders and freemen under 2 Will. 4. c. 45, and therefore persons possessing freehold property are entitled to vote for the said city, and the overseers of each parish make out two lists, one consisting of persons entitled as occupiers, and the other of persons entitled by virtue of other rights, except as freemen, which after being revised by the revising barrister, are amalgamated into one list by the town clerk, forming the register of voters for the city.

It was contended on the part of the objector, that though the claimant had followed the form in the schedule prescribed by the Act, he had insufficiently filled it up, inserting only the qualification, and not the nature of it also, and that therefore the notice of claim was insufficient. That the word "house" did not express any qualification known to the law, and there was no indication of the list in which the said R. S. Ganniclifft claimed to have his name inserted, or whether he claimed to be entitled to vote as owner of a freehold house, or as occupier of a house.

It was further contended that the Revising Barrister had no power to amend the notice of claim under 6 & 7 Vict. c. 18. s. 40, by inserting the words " оссираtion of "

Firstly, because that would be giving a qualification, and not merely more accurately defining one already given, "house" being no qualification at all.

Secondly, because the said section only applied to the lists which the Revising Barrister had to revise, and not to the list of claimants, or any notices, and no alteration of the published list of claimants could enable the Revising Barrister to hold that the claimant had duly claimed, as

required by 6 & 7 Vict. c. 18. s. 38, before the Revising Barrister could insert his name in the list.

On the part of the said R. S. Ganniclifft it was contended-

Firstly, that the notice of claim being in the form given by the Act (6 & 7 Vict. c. 18) was sufficient, although it did not expressly state on which list the said R. S. Ganniclifft claimed to be placed.

Secondly, that the nature of the said R. S. Ganniclifft's qualification was sufficiently indicated by the notice of claim.

Thirdly, that Section 40 did enable the Revising Barrister, if necessary, to amend the list of claimants, and that the claim was good; and he relied as an authority for this upon the case of Barlow v. Mumford (1) and the cases therein referred to.

Fourthly, that any description of the nature of the qualification in the notice of claim, which, if it had appeared in the overseer's list, the Revising Barrister should have corrected into a correct description was sufficient, in support of which he relied on the authority of Eaden v. Cooper (2), and that in an occupier's list, even if "house" were sufficient to designate the qualification as being ambiguous, and not stating whether it meant "freehold house" or "house as occupier,' yet it might be more clearly defined according to the nature of the qualification, which it was proved to have been intended to mean if information was supplied to the Revising Barrister.

The Revising Barrister held

Firstly, that the form of the notice was sufficient, being that given by the Act, and no one being in fact required to place his name upon either list till the case came before the Revising Barrister.

Secondly, that the description of the nature of the qualification in a notice of claim was sufficient if it was such that the Revising Barrister should (if it had appeared upon an overseer's list or a register for a county) have amended it under 6 & 7 Vict. c. 18. s. 40, into a correct description, and that "house was a description which the Revising Barrister would have been justified in amending

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(1) 36 Law J. Rep. (N.s.) C.P. 65; s. c. Law Rep. 2 C.B. 81.

into "occupier of a house" under such circumstances.

Thirdly, though the Revising Barrister was of opinion that 6 & 7 Vict. c. 18. s. 40, did not apply for the reason relied on by the objector, the Revising Barrister held that he was bound by the authority of Barlow v. Mumford (1) to hold that it did so apply, and he was satisfied that if he had the power of amendment he ought to use it; he therefore held that the notice of claim was sufficient, and inserted the name of the said R. S. Ganniclifft in the said list of occupiers.

The appellant appealed from this decision. The question for the opinion of the Court was, whether the said R. S. Ganniclifft duly claimed to be placed on the said list, the Revising Barrister having made such amendment (if any were necessary), as he had power to do.

Kingdon for the appellant.-The claimant described the nature of his qualification as "house;" and the first question is, whether that is a sufficient description to entitle him to the franchise for the city of Exeter, there being in that place a freehold as well as an occupation qualification; and the further question is, whether, if it be not a sufficient description, the Revising Barrister had power to amend it. Now the Revising Barrister had no power to amend the notice of claim. It is clear from the case of Eaden v. Cooper (2), that the notice of claim cannot be amended, but that where the qualification is inaccurately described in the notice, the proper course, as pointed out by Maule, J., in that case, is not to amend the claim under 6 & 7 Vict. c. 18. s. 40, but to proceed as if due notice had been given, if the error be such that had it occurred in a list of voters, the Revising Barrister would have been justified in amending it. The Revising Barrister in the present case seems to have overruled Eaden v. Cooper (2) on the authority of Barlow v. Mumford (1), but that last case really does not militate against Eaden v. Cooper (2).

[BRETT, J.-What is said in Barlow v.

(2) 11 Com. B. Rep. 18; s.c. 2 Lutw. 183; s. c. 21 Law J. Rep. (N.S.) C.P. 32.

Mumford (1) about amending the claim, does not mean amending the notice of claim, but the list. WILLES, J.-What the Revising Barrister has substantially done in the present case has been to amend the list; and the question raised is, whether the description of the qualification is sufficient, and if not, whether the Revising Barrister had power to amend the list, so as to make it sufficient.]

Then as to the substantial question in this case. There was here such an omission of part of the qualification as made the description of it bad, and deprived the Revising Barrister of any power of amendment under section 40 of 6 & 7 Vict. c. 18. The case of Bartlett v. Gibbs (3) shews that where the qualification consists of several premises in succession, it is a mis-description, which the Barrister has no power to correct under that section, to state in the register a description only of the premises in the occupation of the voter at the time of registration, as a description of all the premises occupied in succession ought be inserted in the list. In a note to that case by Mr. Serjeant Manning, at page 97 of the report, the principle governing that fortieth section is thus stated: "The fortieth section relates to two classes of defects only. The first class consists of cases in which there is a total omission of the Christian name, or the nature of the qualification, or the local or other description of the property. Here the omission of the nature of the qualification' was not total. The second class embraces cases of insufficiency of description for the purpose of being identified.' Here the description, such as it is" (referring to the description of the qualification in Bartlett v. Gibbs (3), " was sufficient for the purpose of identification. defect was not total omission or misdescription, either of which might have been amended; it was a case of partial omission, which is unamendable." In the present case the claimant to be entitled must have a qualification as occupier or as freeholder of a house, and his omission to say in respect of which it

The

is he claims to be entitled, is clearly a partial omission within the principle pointed out Mr. Serjeant Manning. Had this been the case of an ordinary borough, no doubt the description here would mean only a qualification as occupier. But this is a borough in which there exists the old burgage as well as the occupation tenure, and the claimant, by merely stating he claims in respect of a house, does not shew whether he claims as freeholder or as occupier. He should shew which it is he claims, or otherwise the objector will be put to great inconvenience and not know what kind of case he ought to be prepared to meet at the revision. In Daniel v. Camplin (4), Erle, C.J., says, "The form of the notice of claim given in schedule 1 No. 4, 2 Will. 4, runs thus: 'I hereby give you notice that I claim,' &c., and that my qualification consists of a house in,' &c. (and in the case of a freeman say 'and that my qualification is as a freeman of,' &c.) And this I think shews what is meant by the particulars of the qualification mentioned in schedule B. No. 6 of the 6 & 7 Vict. c. 18. In counties it is not necessary that the voter should be an occupier of the premises in respect of which he is entitled to vote, and the list must therefore state whether he is a freeholder, or tenant, or occupier if he should be so." It is an essential part of the qualification in the present case that the claimant is either the owner of a freehold house or else the occupier of a house of sufficient value. The omission to state this is one which cannot be amended under sec. 40 of 6 & 7 Vict. c. 18. Williams, J., in Howitt v. Stephens (5), states that the cases there cited shew "that the 40th sec. of 6 & 7 Vict. c. 18, applies only to cases where there has been an inaccurate or insufficient description of the claim relied on, and not to cases where there is a total omission to state some part of the description of the qualification which is an essential foundation of the claim."

Lopes appeared for the respondent, but was not called upon.

(4) 7 Man. & G. 167; s. c. 14 Law J. Rep. (N.S.) C.P. 121.

(5) 5 Com. B. Rep. N.. 30; s. c. 28 Law J. Rep. (N.S.) C.P. 105.

WILLES, J.-I am of opinion that the decision of the Revising Barrister was right. I do not concur with him in the doubts he has had as to the decision of this Court in Barlow v. Mumford (1). It appears that he thought that that case was one in which the Court held that the notice of claim might be amended. It was the list founded on the notice of claim, and which is referred to in the 40th section of 6 & 7 Vict. c. 18, and not the notice, which in fact does not occur in that section, which was amended. In the present case the Revising Barrister acting on the authority of that case, amended the list, and if it were necessary to determine the matter, I think he was right in amending it, because the object of the amendment was for more sufficiently describing the qualification. It is true that the objection in the present case arises from the circumstance that Exeter is a borough, in which there exists the tenure in burgage which is described in Littleton, sec. 162, and Lord Coke in his comments thereon says, "every city is a burgh, but every burgh is not a city."

Exeter happens to be a place where the ancient burgage tenure prevails, and where by reason of the 31st and 33rd sections of the Reform Act (2 Will. 4. c.45), the rights of burgage tenants are still surviving, and consequently a person if he occupies a house there of the annual value of 101., may have a right to vote under sec. 27 of the Reform Act, or if he be the owner of a freehold house, he may be entitled to vote under section 33 of that Act. But for this circumstance it is clear that the claim in the present case was sufficient. In Hitchins v. Brown (6) the claimant stated his qualification in the 3rd column as "house," and in the 4th column he shewed that he was entitled only as the occupier of houses in succession, and no one thought but that "house" would have been sufficient if his qualification had not been as occupier of houses in succession, and the Court in their judgment considered it unnecessary for the Revising Barrister to amend the statement by changing "house" into "houses occupied in succession." I must therefore hold

(6) 2 Com. B. Rep. 25; s. c. 15 Law J. Rep. (N.S.) C.P. 38.