QUALIFI CATION. NATURE OF spinning, were "buildings" under the Act. It appeared that each tenant of a room had his own spinning-machine in it, worked by a power supplied, according to agreement with the landlord, by a steam-engine belonging to and worked by the landlord, who also found the gearing, or shafting, which communicated such power to the machines. Each tenant had the exclusive use of his room, and a key to the door of it, which he approached by a common staircase. Each room was held to be a "building." See ante, p. 64, n. (v). If building pulled down or burnt. Joining houses, &c. Where within curtilage. The question of whether an erection is a "building" within the Act is one of fact for the barrister to decide; and unless he gives a description of it inconsistent with its being such, the Court will not interfere. Ibid. See also Wood v. Overseers of Willesden, 1 Lutw. 314; 15 L. J., C. P. 41; 2 C. B. 15; Powell v. Farmer, suprà. In the New Windsor case, K. & O. 153, and Woodstock, 1838 (MS.), it was held that the qualification continued where a house had been pulled down and was re-building. And it seems rightly; for where there is an intention to occupy the new house as soon as it is built, and rates, &c., are paid without interruption, there is a constructive occupation (c) as in cases where a person is absent from his home for pleasure or convenience. So where the house was burnt down. Lyme, B. & Aust. 463 (Cozen's case). Secus, however, where, under similar circumstances, the occupation was never resumed. (Hick's case.) Ibid. 460. And see Ipswich, F. & F. 278 (Snell's case). No two of the subject-matters of qualification can be joined together to make up the value, where that is a necessary ingredient in the qualification. The words " "house," "warehouse," "counting-house," "shop," or "building"-being each mentioned in the singular number-must stand independently of each other. Thus, two houses of the value of 51. per annum each, a house of 51. and a warehouse of 57., and the like, cannot be joined. Denhurst v. Fielden, 1 Lutw. 274; 7 M. & G. 182 (d) ; 14 L. J., C. P. 126; Wigan, B. and Aust. 160 (Barton's case). Where, however, the building is within the same curtilage as the house, it may be joined with it, or, more properly speaking, 66 (c) And semble, also a constructive inhabitancy" under the 30 & 31 Vict. c. 102. (d) Maule, J., in giving judgment in this case, said, "I think we should not involve ourselves with the decisions on settlement cases. We ought to be spared discussions upon the Tenement Acts, which are not at all upon the same subject as the Reform and Registration Acts. The same reasons, therefore, are not applicable in the construction of them." QUALIFI the two are then considered as making together but one house. NATURE OF But in determining this question the Court will not give a larger CATION. meaning to the word "house" than its general legal signification Joining in civil and criminal cases. Where, therefore, a person occupied houses, &c. a house and shop, separated from each other by a yard, the mode of access from one to the other being by means of the yard, of which the voter had the exclusive use; but the yard communicated with the public street by means of an open passage, through which another occupier had a right of way; and the shop was not contiguous to the house, nor was connected with it by any intermediate building, fence, or other matter than the soil of the yard, it was held that, there being no common fence including the house and shop, they could not be joined together so as to constitute one entire qualification. Powelliv. Price, 4 C. B. 104; 1 Lutw. 586; 16 L. J., C. P. 139. But where the elaimant occupied under one landlord a stable with a hay-loft over, built of brick, annexed to which, but of a lower elevation, was another brick building, to which, again, was annexed an irregular wooden building, divided into three com. partments; the whole being in the exclusive occupation of the claimant, and used by him for the purpose of his business as a wheelwright, but the access to each being by a door opening into a yard, also in his exclusive occupation, there being no internal communication except between two of the compartments of the wooden building; it was held that these premises constituted "a building" within the section. Pownall v. Dawson, 11 C. B. 9 ; 2 Lutw. 177; 21 L. J., C. P. 14. So a coach-house and stable under the same roof, with no internal communication except two grated windows looking from one into the other, and with sepa. rate outer doors, Joliffe v. Rice, 18 L. J., C. P. 25 ; 6 C. B. 1 ; 2 Lutw. 90. The words "land occupied therewith," in the 27th section of Land occuthe 2 Will. 4, c. 45, have occasioned a question whether "there- pied with house. with" has reference only to time, or whether it is necessary that the house, &c., and land should in some way be attached to, or connected with, each other. The latter view seems to embrace various subtleties; and, indeed, the provision that both should be held under the same landlord would hardly have been necessary if this construction had been in contemplation. Accordingly, it has been held, that a person occupying under one landlord a house, and garden not immediately adjoining the house, at an entire rent exceeding 107. per annum, was entitled to be registered under that section. Collins v. Thomas, 12 C. B. 639; 22 L. J., C. P. 38; 2 Lutw. 219; Sparrow's case, 1st Harwich, 1 NATURE OF Joining houses, &c. "Under the same landlord." NATURE OF OCCUPATION. Mere tenancy not sufficient. P. R. & D. 308; Burton v. Overseers of Ashton, 8 C. B. 7, per The words "under the same landlord," used in the above section, are satisfied if the premises were originally taken from the same person, "so long as the tenant continues to hold under that taking ;" and a landlord cannot deprive a tenant holding two tenements of him of his vote by parting with the reversion of one of the tenements during the term. Smerdon v. Tucker, K. & G. 305; 29 L. J., C. P. 93, 96. Both under the 2 Will. 4, c. 45, and the 30 & 31 Vict. c. 102, occupation is a necessary ingredient in the borough franchise. In considering what is required to constitute occupation, it is necessary, in the first place, to distinguish it from mere tenancy. Some Committees, indeed, seem to have disregarded the question of occupation, and to have thought that so long as a tenancy continued a party retained his vote. This must have resulted from a notion either that the statute only required tenancy, or that tenancy implied occupation, or was the same thing with it (e). See Kingston-upon-Hull, K. & O. 428 (Hood's case). Wigan, F. & F. 687 (Milligan's case); Reading, F. & F. 547, 549 (Fife's Balding's and Holton's cases); Youghal, F. & F. 390 (Clarke's case). But it is to be observed that the statutes, by requiring that a party must occupy, either as owner or tenant, make ownership or tenancy a superadded qualification to occupation; and though it is necessary to show ownership or tenancy in order to give a franchiseable character to the occupation, that is quite independent of the fact of occupation, which is the essential ingredient in the borough franchise, and must be substantially proved. The mere existence of ownership or tenancy, which is consistent with the right of possession, and, consequently, with the occupation being in another person by means of a sub-demise, cannot of itself constitute occupation. The word tenancy, in its most comprehensive sense, describes the right or title which a man has in lands and tenements through the several gradations from tenant in fee simple down to tenant at will; occupation, on the other hand, describes the exercise of that right by actual user. It would therefore seem to be a confusion of things in themselves entirely distinct, to consider that the continuance of a tenancy, which amounts to a right to occupy only, necessarily implies the exercise of that right in fact, or is the same thing with it (ƒ). (e) But see Pinero v. Judson, 6 Bingh. 211, per Tindal, C. J. See also 9 B. & C. 184. (f) The distinction between mere tenancy or holding, and occu OCCUPATION. If a man puts furniture or goods into a house, or places in it his NATURE of servants or clerks, or in any other way makes a bonâ fide use of it, he occupies it. But if he lets it, and his lessee takes possession, both his right to occupy and his occupation in fact are put an end to by the occupation of the lessee. Where forty-six persons, with the view of obtaining votes in a When, illegal. borough, hired a farm and buildings and carried on the business of the farm by means of a manager, but omitted to register the association, as required by section 4 of the Companies Act (25 & 26 Vict. c. 89), it was held, that as their only occupation was a constructive one by their manager, and they could not prove that, without at the same time showing the illegality of their association, they were not entitled to the franchise. Harris v. Amery, L. R. 1 C. P. 148; H. & P. 294; 35 L. J., C. P. 89. But it would seem from the observations of the judges in the above case that if actual occupation can be proved, without showing its illegality, the legality or otherwise of such occupation, e.g. for immoral purposes, could not be questioned at the revision court. Taunton, F. & F. 297.-The voter, being a yearly tenant from What not Midsummer to Midsummer, gave notice to quit at Lady-day, and a few days before Midsummer tendered the keys to his landlady, who refused to accept them because the notice to quit was not sufficient. However, unknown to her, the keys were left at her house. A fortnight after Midsummer the landlady's husband wrote "To be let" on the door, and she took legal proceedings for the recovery of the rent up to Christmas, but did not take possession of the house till after the election in July. The voter had removed at Midsummer, and the house was shut up at and after the election. The vote was held bad. And see Prentice's case. Ibid. 273. sufficient. pation, has been frequently pointed out in cases under the Tenement So with regard to the word "possession:" a man in popular language, and for many purposes in legal presumption, is said to be in possession of property which is occupied by tenants who pay him rent for it; but such constructive possession does not, except where a man or his family live in a house, and let part of it to lodgers, fulfil the meaning of the word occupation. In the old cases "occupancy" is said to arise out of "the actual possession and manurance of the land." Vin. Abrid., “Occupancy," H. E NATURE OF OCCUPATION. What not sufficient. By goods, &c. Blackburn, B. & Aust. 339 (Clark's case).-The voter left his house in May, 1839, and went to reside elsewhere, leaving his wife and children there till Midsummer, 1840, when they followed him. They, however, left some of the furniture in the house, apparently to satisfy arrears of rent. The key was given up in November, 1840, and soon afterwards the landlord put in an execution for rent due. Held, that the voter had not a sufficient occupation in July, 1840. In Attwood's case the voter claimed for a furnished house. He did not live there, but his gardener and wife lived in it and took care of it for two years; but they had gone to live in the lodge for some time, and no one lived at the house. The voter had not slept there for two years. The gardener still looked after the house (the voter paying for the coals), but received no wages. Vote bad. 1st Harwich, 1 P. R. & D. 307. Personal residence by a man or his family, though it may be the ordinary, is not the only mode in which a house can be occupied. See M'Ilreavy's case, Alc. R. C. R. 6. In other words, it is not necessary to show a continued residence of any part of the family to constitute a sufficient occupation. See Pisey's case, F. & F. 271. In cases of residence, indeed, where it is required to be inferred that a man, though personally absent, still continues to “reside,” it is important to show that the absence is not permanent; but in cases of occupation, it is immaterial, supposing actual occupation be otherwise shown, whether his personal absence is permanent or only temporary (g). And it is clear, that a house may be occupied by other means than dwelling in it, or inhabiting it personally. Daniel v. Coulting, ante, p. 63. In M'Ilreavy's case, Alcock, R. C. R. 6, where the voter had been tenant of a house for upwards of a year, but had been absent for some months previous to the registration, on the surveying service, and his brother resided and carried on business in the house in his own name, the Irish judges unanimously rejected the vote (h). (g) In R. v. St. Mary Kalendar, 9 A. & E. 626, upon the Tenement Acts, Lord Denman said he considered the language of Littledale, J. (in R. v. Ditcheat, 9 B. & C. 183), to have been pressed to an unreasonable extent, and says, with regard to it, "It cannot have been meant that no occupation could take place without personal residence: a man might occupy by bales of goods;" and Coleridge, J., says, "Suppose he had gone away without any animus revertendi, but had left a person on the premises, would not that have been an occupation? and if so, may not he occupy in the same manner by his goods?" And see R. v. Great Bentley, 10 B. & C. 520. (h) This case was decided under the 2 & 3 Will. 4, c. 88, s. 7, |