(Appeal from Revising Barrister's Court.)

- 1871. Nov. 17.

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BENDLE (appellant) v. WATSON (respondent).

Parliament-County Vote-Description of Qualification-Wrong Number of House -Amendment-6 Vict. c. 18. s. 40.

Where the number of a house has been some years back changed by competent authority, and the old number is used in the description of a man's qualification to vote in the parliamentary election in respect of such house, the revising barrister has power and ought to amend under 6 Vict. c. 18. 8. 40, by substituting the new number, on proper evidence being given.

This was a case stated by the revising barrister of the Eastern Division of Cumberland, under the following circumstances:

An objection was duly made to the name of J. S. Baker remaining on the list of voters, and it was proved that, though the description of the house in respect of which he was on the list was 4, English Street, Carlisle, in the fourth column, and that had been right when the name was first put on, some six years ago the number had been altered by competent local authority to nine, whilst another house became and now was four, but the description had remained on the list unaltered and unobjected to. The revising barrister was asked and refused to amend, and struck the name off, but asked the Court whether he had power and ought to have amended, the name to be restored if the answer was in the affirmative.

Sharpe, for the appellant.-This was only an insufficient description of the same qualification, and therefore the revising barrister ought to have amended under 6 Vict. c. 18. s. 40. No doubt, if the alteration would substitute another qualification, as was the case in Nicholls v. Bulwer (1), it could not be made. But in Flounders v. Donner (2) it was laid down by Erle, C.J., that where the number of the house is required but omitted, it ought to be inserted under this section, if supplied to the barrister; and in Bar(1) 40 Law J. Rep. (N.s.) C.P. 82.

(2) 2 Com. B. Rep. 63; s. c. 15 Law J. Rep. (N.S.) C.P. 81.

low v. Mumford (3) the Court distinctly decided that this is so. There can be no

valid distinction between the insertion and alteration of a number, and if it be said this is not an insufficient description, but an erroneous description describing another house, the answer is that the man's qualification in reality is the same, though by error a wrong description has been used, and that an erroneous description is not the less an insufficient one.

[KEATING, J.-In Luckett v. Knowles (4), Tindal, C.J., laid down that a wrong description was an insufficient one within this section.]

The case also falls within 6 Vict. c. 18. s. 101, because, looking to the fact of the house having formerly borne the number four, it might be said to be commonly understood to indicate it.

Fawcett, for the respondent.-As number four cannot be said to be commonly understood to mean number nine, section 101 does not apply, and the question is, whether section 40 does. An inaccurate description of this house might have been amended, but this was an accurate description of another house, and therefore the section does not apply. In Bartlett v. Gibbs (5) and Onions v. Bowdler (6) it was held that where it turned out that a man had occupied two houses in succession there was no power to insert one of them if omitted, and here, instead of adding another house, the barrister substituted one. The observations of Tindal, C.J., in Hitchins v. Brown (7), also seem to favour the present argument.

WILLES, J.-By the 40th section of 6 Vict. c. 18 it is enacted that, "if any person whose name is included in any such list, or his place of abode or the nature or description of his qualification," that is, the qualification he really has, "shall, in the judgment of the revising barrister, be insufficiently described for the purpose (3) 36 Law J. Rep. (N.s.) C.P. 65.

(4) 2 Com. B. Rep. 187; s. c. 15 Law J. Rep. (N.S.) C.P. 87.

(5) 5 Man. & G. 81; s. c. 13 Law J. Rep. (N.S.) C.P. 40.

(6) 5 Com. B. Rep. 65; s. c. 17 Law J. Rep. (N.S.) C.P. 70.

(7) 2 Com. B. Rep. 25; s. e. 15 Law J. Rep. (N.S.) C.P. 38.

of being identified, such barrister shall expunge the name of every such person from such list, unless the matter or matters so omitted or insufficiently described be supplied to the satisfaction of such barrister before he shall have completed the revision of such list, in which case he shall then and there insert the same in such list." This is sufficient to shew that the place of abode and the nature and description of the qualification (the nature of which is contained in the third and the description in the fourth column of the form) stand on the same footing, and that if the barrister may amend the place of abode, and may, where the place of abode in the list intelligibly describes another place, amend by inserting another number, namely, that of the house intended, on the ground of the place of abode being "insufficient," which includes erroneous; he may similarly also amend as erroneous the description of the qualification. Unless it be something entirely different so as to come within the proviso that, "whether any person shall be objected to or not, 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 appears in the list, except for the purpose of more clearly and accurately defining the same," which makes a distinction between the case of the qualification, or description of it, and that of the description of the place of abode. It is necessary, therefore, for us to see if the barrister can alter an erroneous description of the qualification, looking to the former words and this proviso, which is a proviso with an exception. As to those former words, suppose the case of a street with numbered houses, and that number four is described as forty, objection taken, and it turns out there is no number forty in the street, this would be not an erroneous but an insufficient number; it would be just as if there were no number in the description, and it seems to me that the barrister could amend as if there were a total omission of any number, and if there be a number forty in the street his power is clearly not taken away, the description is still insuffi

cient in my understanding, and it appears that this consideration was applied in Luckett v. Knowles (4). The result is that as far as respects these words of the section in this case (there is not a mistake here), there was power to amend. The description was unquestionably insufficient, and the matter is not different because it was erroneous. The intention was to describe a house formerly numbered four, the description was insufficient, and there was power to amend. But then comes the proviso, and was this amendment a description of an "other qualification than that which is described?" Taking this proviso in conjunction with the words, "his qualification," previously used, and seeing that to a person leaving the street when this house was number four, and returning without knowing of the alteration, it would indicate this house, it is impossible to say this is a description of another quali fication, it is an insufficient description of the claimant's qualification, not a description of another qualification; it is the old description, which at one time was true. And as respects the exception, "except for more clearly and accurately defining the same," the same rule applies; it would be a true description to a person who left the street several years back, and a false one to a person who only knew the new state of things. Throughout the section, so far as it applies, the word "his" governs the meaning, and as the qualification is the same, and the description one which might in a sense be true, inasmuch as it might indicate this house to some people, and there was no falsification, the revising barrister ought to have amended. The cases relied on by the respondent do not apply, as will appear when those cases, namely, Bartlett v. Gibbs (5) and Onions v. Bowdler (6) are taken in connection with Flounders v. Donner (2), and also Hitchins v. Brown (7), in one of which, Flounders v. Donner (2), Erle, C.J., explains that there were no sufficient materials to amend by inserting the number; for in those two cases the character of the qualification would have been entirely changed by the proposed amendment, the true qualification being houses in succession, and no particular

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. 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

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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 error 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.

Decision reversed.

Attorneys Carter & Bell, agents for J. Bendle, Carlisle, for appellant; Johnston & Mounsey, arents for H. Dobinson, Carlisle, for respond

ent.

V. DIXON

(Appeal from Revising Barrister's Court.) 1871. SIMEY (appellant) Nov. 22. (respondent). Parliament-County Vote-Objection. 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

vote.

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 objection 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