person under whom they "served in their office, service, or employment" resided in the same dwelling-house within the meaning of section 3 of that Act. This was an appeal from the decision of the revising barrister for Canterbury. From the case stated by the barrister the following facts appeared : The appellant was a sergeant in the 7th Dragoon Guards, the depôt of which is attached to the general cavalry depôt at Canterbury. As such sergeant, he inhabited, by virtue of his service in the army, two rooms on the first floor of a block of buildings in the cavalry | barracks, and had inhabited the same two rooms for more than twelve calendar months previous to the 15th of July, 1885. The appellant's rooms, the furniture of which was in part supplied by Government, opened into a passage used in common by himself and other non-commissioned officers. That passage communicated with a staircase, and that, again, into a passage on the ground-floor which led to the front door. No one else but the appellant had a key to his rooms. The appellant was obliged to be within his quarters by a certain hour every evening. In accordance with the Queen's Regulations and certain standing orders issued by the commanding officer, it was the duty of the medical officer to inspect the appellant's quarters as well as all other portions of the barracks every week, and to report on the condition thereof. It was the duty also of the orderly officer and certain other officers to visit such quarters at stated times, and to report as to their order and condition. Such inspection did, in fact, take place from time to time, for which purpose the appellant, on receipt of notice, was bound to admit those officers to his quarters, and they would have had the power to break open the door and enter if admittance had been refused to them. Non-commissioned officers of superior rank to that of the appellant lived in the same quarters, and it was the duty of the superior non-commissioned officer to maintain order in case of need, and for that purpose, if necessary, to enter the appellant's rooms. The commanding officer lived in a detached house away from the block in which the appellant lived. That house was within a wall extending round the various barracks and barrack yards. The commanding officer could at any time enter any part of the barracks, including the appellant's rooms, for any cause which might seem to him reasonable, though it was usual for him to give notice before making a general inspection, and he further had the power of closing the barrack gates and of forbidding any person to enter or leave the barracks at any time. The appellant was liable to be ordered by the commanding officer to change from the quarters assigned to him and to live in others, and was bound to obey such orders. The Queen's Regulations and Orders for the Army, published by the War Office, were made part of the case. The barrister held that the occupation of the appellant was not of such a nature as to constitute him an inhabitant occupier within section 3 of the Representation of the People Act, 1884; and, further, that " dwellinghouse" in that section must be taken to mean the barracks as a whole, or the block of buildings in which the appellant's quarters were situate, and that in either case the dwelling-house in such extended sense was inhabited by persons under whom the appellant served. Crump, Q.C., and Bargrave Deane, for the appellant. -The barrister has found that the appellant has inhabited rooms for the required period in virtue of his not of their superior officers. The oc premises is the occupation of the Crow Asquith, for the respondent.-The Act was not to confer a widely-extend to remove certain disabilities by which well qualified were not permitted to v occupation, being in their capacity of to be the occupation of their master required that the claimant should o The point in dispute in Dobson v. Jones Clarke v. Overseers of Bury St. Edmu 1 C. B. N. S. 23, was in the minds o this Act. This appellant only occu dwelling-house which is also occupied of whom are his superiors. Further, t not had the sole and exclusive use of were liable to be entered at any tin officer. [Lord COLERIDGE, C.J.-Surely right to enter his servants' rooms to ke other purposes, even though those pren turally separate, as in the case of the in the schedule to the Act.] I submit without being his masters, have right lant's rooms which prevent him from h sive use and occupation of them. Ag be an inhabiting of these rooms, J inhabited by a person under whom the a in his office, service, or employme "dwelling-house" in the section is ev two senses, but in the second and larg word it is evident that superior officers i dwelling-house. Moreover, the colonel the curtilage or barrack-wall. Crump, Q.C., was not heard in reply. SEDGWICK V. NEVILLE. The facts found by the revising barri were similar to those in the last case allowed the claim. Hon. Mark Napier, for the appellant barrister allowed the claim, but I submit not occupy by virtue of any service. given in the schedule to the Represe People Act, 1884, are of real servants. servants at all they are servants of the Crown is not named in, and not bour The Crown might be prejudiced by this e of its servants. By the Queen's Regulat made part of the case, private soldiers a take part in political meetings in barrack Further, the premises occupied by the not a dwelling-house; the Crown has barracks, and by its orders the men are quarters which are liable to intrusion for other purposes. Rosher, for the respondent.-Allowing to vote is not divesting any right, titl tive of the Crown within the meaning of given in Bacon's Abridgment, tit. Prerog on Statutes, p. 112. By 10 & 11 Vi exercise of the franchise by soldiers is mitted. There never has been a statute or disenfranchising soldiers, while other C have been expressly dealt with. The A 9, sub-section 9, shows that the Legisla plated conferring vetes on Crown servan ATKINSON V. COLLARD. within the "office, service, or employment" of the Crown, and inhabits the barracks by virtue of his service. LOWRY v. COLLARD. In this case the appellant was a captain in the army residing in cavalry barracks at Canterbury. In the same block of buildings a superior officer, Major Hickman, also occupied quarters. The revising barrister held that he was thereby disqualified from exercising the franchise. Nov. 5.-CAVE, J., delivered the judgment of the court: The appellant in Atkinson v. Collard is a sergeant in the army and he claims the vote as having inhabited a dwelling-house by virtue of his service within the meaning of the 3rd section of the Representation of the People Act, 1884. HIGH COURT. dwelling-house or they are part of a dwelling-house, and, in the latter case, as they are separately occupied as a dwelling, they form a dwelling-house within that section. A servant does not the less inhabit a dwellinghouse, nor is it the less a dwelling-house, because the master makes and enforces regulations for the good government of the servant and of his house; nor does the fact that the master retains himself or delegates to others the power of entering a servant's house, for the purpose of maintaining order, prevent the servant from having the sole and exclusive use of the house. The next objection is, that tho dwelling-house was inhabited by a person under whom the appellant served. Now, it is obvious that this part of the section cannot apply where the master and servant occupy separate and distinct houses, and, as where the servant inhabits part of a house he must have the sole and exclusive use of that part, this clause can only apply where the servant inhabits part of a house, and the master inhabits the house, of a part of which the servant has the sole and exclusive use. serves. It was objected that this section does not apply to service in the army, because the Crown is not bound by a statute unless named in it. How the rights, prerogatives, or property of the Crown are affected by soldiers Thus, where a butler has the sole and exclusive use of having votes we cannot see, but it is enough to say that a bedroom in his master's house, it is clear that the the Crown is named in the statute, as we shall show dwelling-house is inhabited by the person under whom presently. the butler serves; and, where a gatekeeper has the sole Next, it was said that it was contrary to public policy and exclusive use of a cottage at the gate of his that soldiers should have votes. No authority was citedmaster's park, it is equally clear that the dwellingfor this proposition; on the contrary, soldiers have house is not inhabited by the 'person under whom he always, in respect to the franchise, been treated on the same footing as civilians. By 8 Geo. 2, c. 30, which In the present case the appellant inhabits two rooms in provides for the removal of soldiers from the vicinity of a block of buildings, and there are other rooms in the an election, it is enacted that "nothing in the Act same block inhabited by other non-commissioned contained shall extend to any officer or soldier who officers, some of them of superior rank to himself. Now, shall have a right to vote at any such election, but that it appears impossible to contend that the appellant every such officer and soldier may freely, and without inhabits the whole block as a dwelling-house; and, if he interruption, attend and give his vote at such election." inhabits his own two rooms only, it must follow that the A similar provision is to be found in 10 & 11 Vict. c. 21, other non-commissioned officers do the same, and, conIt is true that, by 22 Geo. 2, c. 41, and 8 Geo. 4, c. 53, sequently, that the officer of the highest rank also only If this is not so, either every 8. 9, officers of Excise and Customs and persons engaged inhabits his two rooms. in the Post Office were disqualified from voting, but person in the block must inhabit the whole block, which these disqualification were finally removed by 31 & 32 is absurd, or else, when the officer of highest rank goes Vict. c. 73, which recites that "it is inexpedient that away, the next officer immediately, and by virtue of his any person otherwise entitled to be registered as a voter superior rank, at once begins to inhabit the whole block, should be incapacitated to vote at the election of a having previously inhabited only his two rooms. member or members to serve in Parliament by reason of truth, the senior non-commissioned officer occupies his his being employed in the collection or management of own two rooms, and those only, and cannot inhabit her Majesty's revenues." rooms which he, in fact, does not occupy either by himself or his servants, although, undoubtedly, the converse does not hold, and a man may occupy what In our judgment there is no dwelling-house here of which the appellant occupies a part and the senior non-commissioned officer the whole. The question, moreover, is put beyond all doubt by the 9th section of the Representation of the People Act, 1884, sub-section 9, which provides that, "where a man inhabits a dwelling-house belonging to, or being occupied on behalf of, the Crown, or by reason of any other ground of exemption, such person shall not be disentitled to be registered as a voter." Now a dwelling. house can only be occupied on behalf of the Crown by a servant of the Crown, or, at any rate, by some one who is regarded as being in consimili casu with a servant of the Crown, so that this provision is a clear indication that servants of the Crown are intended to be included within the Act. The other objections made against the vote were of a more special character. The word "inhabit" simply means "to dwell in," and there can be no doubt that the appellant inhabits the two rooms in question. It admits of as little doubt that they form a dwellinghouse. By section 5 of the Registration Act of 1878, the term "dwelling-house" is to include any part of a house where that part is separately occupied as a dwelling, and it is also provided that, where an occupier is entitled to the sole and exclusive use of any part of a house, that part shall not be deemed to be occupied otherwise than separately by reason only that the occupier is entitled to the joint use of some other part. Now, the two rooms in question are either themselves a he does not inhabit. In Moreover, we think that the appellant in this case does not serve under the senior non-commissioned officer. It is not necessary to decide whether a private soldier serves under the captain of his troop or company, or a captain under the colonel of his regiment. A soldier does not serve under every one of superior rank to himself in the same regiment, and there are no facts stated in the case which warrant the conclusion that the appellant served under anybody who inhabited any rooms in the same block of buildings. These considerations dispose of most of the cases relating to non-commissioned officers and married men. In the case of Lowry v. Collard, it was contended that the appellant, in that case a captain, would not have the right to vote, because an officer of superior rank, a major, had quarters in the same block of buildings. This case, however, is not substantially different from Atkinson v. Collard, and we think the same considerations apply. The major did not, in fact or constructively, inhabit the whole block, but only his own quarters, and, moreover, is not a person under whom Election law-Parliament Soldiers in barracks Nov. 5.-CAVE, J., read the written court (Lord COLERIDGE, C.J., GROVE an In this case the respondent, wh in respect of his inhabitancy of a dwe barracks at Exeter, was absent during D qualifying period at Okehampton. he could not return to Exeter withou The respondent did not, therefore, Exeter during the whole of the three h five days making up the qualifying pe however, that the actual inhabitancy d the days is not necessary, and that it claimant can make out a constructive in order to make out a constructive must be an intention of returning a absence, and a power of returning at breach of any legal obligation. The case of a sheriff was put in Break of residence-Representation of the People Act, argument. A sheriff always intends t 1867 (30 & 31 Vict. c. 102), s. 4. Soldiers who have been absent on duty for twenty-one days from their quarters during the qualifying period have not complied with the conditions of 30 & 31 Vict. c. 102, s. 4, and have not constructively occupied those quarters so as to be entitled to be placed on the list of voters for the election of members of Parliament. Ford v. Hart, 22 W. R. 153, L. R. 9 C. P. 273, followed. for the purposes The facts, so far as material of this report, were similar to those in Atkinson V. Collard, but the revising barrister found, in addition, that the claimant had resided in barracks at Exeter for the qualifying period, but had been absent on duty at Okehampton for twenty-one days during that period, and could not have returned without leave. The claimant's wife and children and his furniture remained in his rooms, and no one else was entitled to use or occupy them during his absence. The barrister held that the claimant was entitled to the franchise. Bompas, Q.C., and Hon. B. Coleridge, for the appellant. The respondent is not entitled to vote unless he can satisfy the requirements of the 30 & 31 Vict. c. 102, s. 4, as amended by the Parliamentary Registration Act, 1878 (41 & 42 Vict. c. 26), s. 7. There must be a residence for the whole of the qualifying period, and such a break of residence as is found here, where there is neither the intention nor the power to return, disqualifies. They cited Durant v. Carter, 22 W. R. 158, L. R. 9 C. P. 261; Ford v. Hart, 22 W. R. 159, L. R. 9 C. P. 273; Rex v. North Currey, 4 B. & C. 961. Sir J. E. Gorst, S.G., and Foote, for the respondents. -There was a constructive inhabitancy in this case similar to that which was held sufficient in Rex v. Mitchell, 10 East, 511. The cases cited were decided on the word "reside," and not on the word "inhabit." Ford. Drew, 28 W. R. 137, 5 C. P. D. 59, the last case on the subject, is also decided on the word "reside," Absolute conand distinguishes Rex v. Mitchell. straint as in Powell v. Guest, 13 W. R. 274, 18 C. B. N. S. 72, no doubt disqualifies, but there was no such constraint here. If this is held to be no constructive duties are at an end, and has always without breach of any legal obligation. sufficiently near to the assize town return to it every evening. If it is too return to it, not because he breaks any by going to his home, but because he ca his official duties. His difficulty is not a legal one, and he cannot go hom for the same reason that a man who is Continent cannot do so. In this case, unfortunately, the facts stated, and we do not know whether, wh was sent to Okehampton, it was the in who sent him that he should return to E leave to return could have been procu If it d it would have been refused. shown that it was always the intention o that he should stay at Okehampton th and then return to Exeter, and that lea Exeter every night would have been gra of course, or, if refused, only refused on culty of communication, and not because required at Okehampton in the night have thought there were strong grounds that there was a constructive inhabitanc there was no inhabitancy, in fact, during in question, it lay on the claimant to pro lishing a constructive inhabitaucy, an judgment, he has failed to do. We were pressed on the one side wi Ford v. Hart, and on the other side v Rex v. Mitchell. In our judgment, within the principle laid down in Ford v two cases are inconsistent, we think the should be followed. HIGH COURT. EX PARTE DISTRICT BANK OF LONDON.-Ex parte BULLOCK (OFFICIAL RECEIVER). Bankruptcy-Proof by wife-Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 3-Onus of proof. The meaning of section 3 of the Married Women's Property Act, 1882, is that where money or other estate of the wife is lent or intrusted by her to her husband for the purpose of any trade or business carried on by him or otherwise, she cannot prove, for the purpose of voting enly, or at all, until after the other creditors are satisfied. The onus of proof that the money was not leat for such purpose is on the wife. Objection to the proof of Mrs. Genese, the wife of the debtor. The proof of Mrs. Genese for £384 for money lent and advanced out of her separate estate was admitted by the chairman of the first and second meetings, and she was allowed to vote. A scheme of arrangement was resolved on. The District Bank, one of the creditors, appealed against the chairman's decision. The scheme fell through, and the debtor was adjudicated a bank. rupt, so that the present application was practically for costs. A preliminary objection was raised that the motion was out of time, but after some argument it was agreed by both sides that the case should be heard on the merits. Vaughan Williams, for the District Bank, the applicants.-Mrs. Genese cannot prove until all the other creditors have been satisfied; this is the meaning of section 3 of the Married Women's Property Act, 1882, and it follows, as a matter of course, that she cannot vote. The principle is the same as in Ex parte Taylor, In re Grason, 28 W. R. 205, 12 Ch. D. 366, where a similar question under Bovill's Act was decided. Cooper Willis, Q.C., and Kisch, for Mrs. Genese.-The old law was that where the husband was a trustee of his wife's property, held for her separate use, the wife could prove: Ex parte Wells, In re Whitmore, 2 Mont. D. & De G. 504. The intention of the Married Women s Property Act, was not to alter the law more than ncessary. [They also referred to section 16 of the Bankruptcy Act, 1883.] Secondly, it is for the applicant to show that the money was lent for use in the debtor's trade or business. Prima facie our client is entitled to prove and vote. Moreover, section 3 only applies to obtaining dividends, not to proof, and if Mrs. Genese cannot prove she is deprived of a "civil remedy" which she had before the Act; this is contrary to the express provision of section 12 of the Married Women's Property Act, 1882. Muir Mackenzie, for the official receiver. CAVE, J.-The only question I have to decide is, who is to pay the costs of this motion. Incidentally I have to decide the construction to be put upon section 3 of the Married Women's Property Act, 1882. It is impossible to adopt Mr. Willis' construction of that section. As to the other point, that the onus of proof is on the appellant to show that the money was lent for the purpose of the debtor's trade or business, I think the onus of proof is on Mrs. Genese to sustain her proof, HIGH COURT. Ex parte BULLOCK (Official Receiver). Bankruptcy-Realization of life interest—Examination of bankrupt - Questions necessary to effect life insurance-Medical examination-Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 19-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 24. A bankrupt cannot be compelled to answer questions or submit to a medical examination of which the sole object is to enable an insurance to be effected on the bankrupt's life with a view to the better or more profitable realization of the bankrupt's life interest in certain property. Appeal from the decision of the judge of the county court of Cheshire, holden at Nantwich, refusing to order the bankrupt, Mrs. Garnett, to answer certain questions and submit to a medical examination, with a view to the insurance of her life for the benefit of her creditors. The only asset under the bankruptcy consisted of the bankrupt's life interest in a sum of £872 7s. 10d., £3 per Cent. Consols; and the official receiver, as trustee, desired to sell it preparatory to winding up the estate. insurance and other societies, who all declined to enterHe submitted particulars of the life interest to several tain the proposal unless the bankrupt's life was insured, insurance unless the bankrupt answered certain questions and the insurance companies refused to effect such and submitted to a medical examination. This she refused to do. The official receiver, therefore, applied to the county court by motion for an order to compel her to answer the questions and submit to the examination. The judge refused the application, and the official receiver appealed. W. E. Ball, for the official receiver.-Unless this application is allowed it will be impossible to effectually realize the estate. One insurance company has already offered to buy, if it be acceded to, and if not the life interest will be worth very little. As this is an old bankruptcy, the application is made under section 19 of the Bankruptcy Act, 1869, which provides that the "bank rupt shall to the utmost of his power aid in the realization of his property and the distribution of the proceeds amongst his creditors," &c. The same provision is reenacted by section 24, sub-section 3, of the Bankruptcy Act, 1883. The life interest is the property of the bankrupt, and the bankrupt is now asked to assist in realizing it. By the same section the bankrupt is required "to submit to such examinations in respect of his property, execute such instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds among his creditors as may be reasonably required by the trustee," &c. Vaughan Williams, for the respondent, the bankrupt. The court has no power to order that the bankrupt pass his public examination conditionally, or to compel obedience to such an order as is here suggested: Ex parte (a.) Reported by J. GERARD LAING, Esq., Barrister-at Law. amination. It has been decided that in the sale of good-sufficient. It must be an immediate p will of a bankrupt's business no conditions can be imposed on the bankrupt: Walker v. Motteram, 30 W. R. 165, 19 Ch. D. 355. Ball in reply.-The reason that no decided case on this point can be found may equally well be that such an application has never been resisted before. CAVE, J.—I am of opinion that the judgment of the county court judge was right, and the appeal must be dismissed. The section in question (section 19), according to its plain meaning, does not authorize the examination of the bankrupt as to the state of her health, with a view to insurance. To my mind, that is a different object from the matters referred to in the section. If anything of that kind had been intended, I should have expected to find distinct words to that effect, and not some words along with words relating to totally different matters. It is admitted that no authority for any application of this kind can be produced, and I am satisfied that it is not a case in which I ought to make a precedent. The appeal will be dismissed, with costs. Appeal dismissed, with costs. Solicitors for the appellant, Rice & Burnett. Bankruptcy-Gift of chattels-Retention of possession. Where it is sought to establish a gift of a chattel of which the donor retains possession, circumstances must be proved from which it can fairly be inferred that the donor intended to make an immediate gift, so that the thing then ceased to be the donor's and became the donee's property. Circumstances from which an intention of making a future gift may reasonably be inferred will not be sufficient. Retention of possession is strong, but not conclusive, evidence against such an intention. Motions on behalf of two children of the bankrupt for orders restraining the trustee from selling certain port wine in the cellars of the bankrupt, and that the trustee might be ordered to deliver up the wine to the applicants. The applicants, Thomas Archer Ridgway and Alice children Ridgway, were of the bankrupt, Colonel Ridgway, an army agent, and resided with him at Shepleigh Court, and they claimed the wine as having been given to them by their father under the circumstances fully set out in the judgment. Aug. 4.-S. Woolf, for the applicants. H. Reed, for the trustee in bankruptcy. Cur. adv. vult. Aug. 11.-CAVE, J., delivered the following written judgment: These are two motions for orders restraining the trustee from selling certain port wine. They are made on behalf of (a.) Alice Ridgway, and (b.) Tom Ridg. way. The wine is claimed by them as a gift from their father. In order to establish such a gift they must show (a.) Reported by J. GERARD LAING, Esq., Barrister-atLaw, In contended for the trustee that change c the donor to the donee must be sho property passes so long as the subj remains in possession of the donor. propositions, two cases, Irons v. Small 551, and Shower v. Pilck, 4 Ex. 478, Cases, 7th ed., p. 153, were cited. On the other hand, it is said that t down there goes too far, and has been d Parke, B., in Ward v. Audland, 16 M Crompton, J., in Winter v. Winter, L. T. N. S. 639; by Pollock, B., in 31 W. R. 578. I am of opinion that it is going to retention of possession by the don proof that there is no immediate prese undoubtedly, unless explained or its eff other circumstances, it is strong evide existence of such an intention. The applicants must, however, prov from which it can fairly be inferred the tended to make an immediate gift, so that them ceased to be the donor's and beca of the donees. It is not enough to pro from which the proper inference is intended to make a gift in the future, b something further was done to compl should retain control over the things given. I may at once dispose of most of the reputation in the family and amongst fr Tom's or Alice's wine proves very little. tation would arise from the expression by the donor whether it was an intent once or at some future time. As to Tom's wine, eighteen or twenty after Tom's birth, Colonel Ridgway det down a pipe of port, and told the friends it was for Tom. It was, how Colonel Ridgway's cellar, and remained i and occasionally a bottle of it was tr condition. The bulk has not been dru yet ready to drink. It is suggested became Tom's when it was first laid dow it is clear that, unless there was a gift the been done since to amount to one. |