with 127. damages: and it was held that the plaintiff dwelt at Margate, and not in London, and therefore that he was entitled to his costs of the action. Cockburn, C. J., delivering the judgment of the Court, there says: "It is unnecessary to consider whether a man may not have two dwelling-places at the same time, or to follow up that question by considering whether in such case the party must be actually and corporally resident within the jurisdiction of the County Court at the time of action brought, in order to oust the superior Court of its concurrent jurisdiction. Our decision proceeds on the narrower ground, that the plaintiff's residence in town having been entirely subservient to the purposes of his business, and that alone, and not as a place of residence, and his family establishment and home. having been in Margate, he must be considered as having dwelt at the latter place alone." Applying the principle of those cases to the facts found here, it is plain that 25 Clowance street was not at the time he signed the notice this man's true place of abode, and therefore the sta tute has not been complied with.

Lush, Q. C., in reply.-Kerr v. Haynes was decided upon the narrow ground that the house in town was entirely subservient to the party's business. [BYLES, J.-There was no accommodation

*104] for the man's family in the town-house. KEATING, J.-Nor was

there in Whithorn, app., Thomas, resp.] The residence in Tewkesbury in the last-mentioned case was merely colourable. [BYLES, J.— Suppose this had been a question of domicil, and the place in Fore Street had been in Calais, could Mr. Curtis have been said to have changed his domicil?] It is submitted not. [KEATING, J.-May not the object of requiring the place of abode of the objector have been to enable the party objected to to go to the objector and ask him on what ground he objects to his qualification?] That may have been one object but the main object was that the objector might be identified. Any person objecting to Curtis's name being retained upon the list, might have served him with a sufficient notice by leaving it at No. 25, Clowance Street. [ERLE, C. J.-It certainly is an uncommonly shadowy occupation at 25, Clowance Street. It is evident that if the Fore Street concern had turned out well, the mother would have seen very little more of her son at Clowance Street. BYLES, J.-The statement shows that he had a strict legal estate, a very small one, it is true, viz., that of tenant at will,-in the house in Clowance Street.] Bailey v. Bryant, 28 Law J., Q. B. 86, was also referred to.(a)

Cur, adv. vult.

ERLE, C. J., now delivered the judgment of the Court: (b)— In this case we think the revising barrister was right in requiring that the objector should state his true place of abode, and that, if he had bonâ fide two places of abode, he might state either.

*105] We also agree with him in thinking that the objector actually

resided with his family and carried on his business at No. 94, Fore Street, at the time of objection, and that, if Fore Street had been stated, it could not have been objected to with success.

(a) See the observations upon this case in Butler v. Ablewhite, 6 C. B. N. S. 740 (E. C. L. R. vol. 95).

(b) The Judges present at the argument were, Erle, C. J., Williams, J., Byles, J., and Keating, J.

But the question before us is, whether Clowance Street is not also shown to be his true place of abode, by reason of the facts that he continued tenant at will to his mother of the house there, and had the intention of returning, and had left some furniture, and had slept there at the stated times. We consider it to be rather a question of fact than of law. The gratuitous tenancy at will to the mother, with an intention to return, is in close analogy with a liberty to stay at his mother's house when he should choose. He was personally absent from Clowance Street at the time when the party objected to might require information, and, during great part of the time between the objection and the revising, the house appears to have been empty.

We think the revising barrister was not bound in law to find Clowance Street to be the true place of abode, by reason of the tenancy at will, under the circumstances stated; and we therefore affirm his decision. Decision affirmed.

*County of KENT.-Eastern Division.

[*106

WILLIAM MINTER BUSHELL, Appellant; BENJAMIN RICHARD EASTES, Respondent. Nov. 19.

A. was in 1826 appointed parish clerk of St. J., Dover; and by license under the seal of the Archbishop of Canterbury, dated in 1832, he was confirmed in his office, "together with all and singular the fees, salaries, and profits either by law or ancient custom belonging to the same." Part of the emoluments attached to the office consisted of the clerk's share of an ancient due payable to the clerk and sexton upon the opening of every grave in the churchyard of the parish; and this exceeded 40s. a year. The parish clerk had not himself to perform any of the work of or incident to the opening of the graves, this being done by the sexton.

The revising barrister held that the ancient fee was in the nature of a remuneration for services rendered in conducting the funeral rites, and not a payment or emolument issuing out of or charged upon any land, and therefore that the parish clerk was not entitled to be registered-Held, that his decision was right.

AT a Court held on the 25th of September, 1861, at Dover, in the eastern division of the county of Kent, for revising list of voters for the parishes in the polling district of Dover, Benjamin Richard Eastes duly objected to the name of William Minter Bushell being retained on the list of voters for the parish of St. James, Dover.

It was proved before the revising barrister, that William Minter Bushell was in the year 1826 duly appointed parish clerk of the said parish of St. James, Dover; which appointment he held, and which his predecessors had theretofore held, for life.

It was further proved, that, by license under the seal of the Archbishop of Canterbury, dated the 23d of August, 1832, the said William Minter Bushell was confirmed in his said office, "together with all and singular the fees, salaries, and profits by law or ancient custom belonging to the same."

It was also proved that a part of the emoluments attached to the said office of parish clerk actually received by the said William Minter Bushell during the period of his holding the said office, and by his predecessors therein, consisted of the clerk's share of an ancient due payable to the clerk and sexton upon the opening of every grave in the churchyard of the said parish of St. James, Dover.

*It was further proved that the clerk had not himself to *107] perform any of the work or labour incident to the opening of the graves; this being performed by the sexton.

It was further proved that the sexton received a fee for the making of each grave, besides the fee he shared with the clerk on the opening

of the grave.

The clerk's share of the fee paid on the opening of the grave was proved to amount annually to 40s. and upwards, and was described in the vestry books of the parish as "an ancient fee due to the clerk.”

Upon this state of facts, it appeared to the revising barrister that the ancient due was in the nature of a remuneration for services rendered in conducting the funeral rites, and that it was not a payment or emolument issuing out of land, or in anywise charged upon the soil of the churchyard, over which neither sexton, clerk, or vestry had any power or control. He therefore held that the said William Minter Bushell was not entitled to be retained upon the said list of voters, and expunged his name therefrom.

If the decision of the revising barrister was correct, the list was to remain without alteration. If the decision was incorrect, the name of the said William Minter Bushell, with his address, and particulars of his qualification ("freehold office, as parish clerk of St. James, Dover"), was to be added to the revised list of voters for the said parish of St. James, Dover.

Macnamara, for the appellant. It is submitted that the appellant is under the circumstances stated in this case entitled to be registered in respect of a freehold office; and, further, it is submitted that, if necessary, it sufficiently appears that the office is connected with freehold land to make it a complete and perfect qualification. It will be *108] material to bear in mind the *statute upon which these freehold votes rest, viz., the 8 H. 6, c. 7. The statute recites, that "whereas the elections of knights of shires to come to the parliaments of our lord the King in many counties of the realm of England have now of late been made by very great, outrageous, and excessive number of people dwelling within the same counties of the realm of England, of the which most part was of people of small substance and of no value, whereof every of them pretended a voice equivalent as to such elections to be made with the most worthy knights and esquires dwelling within the same counties, whereby manslaughters, riots, batteries, and divisions among the gentlemen and other people of the same counties shall very likely rise and be, unless convenient and due remedy be provided in this behalf:" and then it proceeds to enact "that the knights of the shires to be chosen within the same realm of England to come to the parliaments of our lord the King hereafter to be holden, shall be chosen in every county of the realm of England by people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of 408. by the year at the least above all charges; and that they which shall be so chose shall be dwelling and resident within the same counties; and such as have the greatest number of them that may expend 40s. by the year and above, as afore is said, shall be returned by the sheriff's of every county knights for the parliament, by indentures sealed between the said sheriffs and the said choosers so to be made."

66

The object of that statute was, that none should vote in county elections but those who can permanently expend 40s. a year at least arising out of freehold. [WILLIAMS, J.-It has long been settled that a parish clerk not having a freehold interest in house or land in right [*109 of his office cannot vote: Elliott, 2d *edit. 23.] It was so decided by the Middlesex committee in 1804. That resolution, however, cannot affect this case. And none of the subsequent statutes prevent a man from acquiring a vote in respect of a freehold office. The word used in the statute is "franktenement" (somewhat incorrectly rendered "free land or tenement"), which clearly embraces an Tenementum." office for life, whether connected with land or not. says Lord Coke, Co. Litt. 6 a, "is a large word to pass not only lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, wherein a man hath any franktenement, and whereof he is seised ut de libero teneA writ of entry in the nature of mento." See also Co. Litt. 20 a. assize will lie for an office: Fitz. N. B. 192 E. In 2 Bl. Com. 16, it is said: "Land comprehends all things of a permanent, substantial nature; being a word of very extensive signification. Tenement is a word of still greater extent, and, though in its vulgar acceptation is only applied to houses and other buildings, yet, in its original, proper, and legal sense, it signifies everything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible or of an unsubstantial ideal kind. Thus, liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like; and, as lands and houses are tenements, so is an advowson a tenement: and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements." Blackstone, at p. 86 of the same volume, gives a definition of an "office." He says: "Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments [*110 thereunto belonging, are also incorporeal *hereditaments, whether public, as those of magistrates, or private, as of bailiffs, receivers, and the like: for a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only." According to the statement of this case, the appellant clearly holds an "office" within that definition. In Heywood on County Elections, p. 65, it is said: "The statute of Henry the 8th requires each voter to have a qualification in 'free land or tenements to the value of 40s. by the year.' By the 18 G. 2, c. 18, s. 3, no person shall vote for the electing of a knight or knights of the shire in respect or in right of any messuages, lands, or tenements,' which have not been assessed to some aid granted by land-tax twelve calendar months next before such election. The word tenement in its vulgar acceptation is usually applied to houses and other buildings, yet, in its original, proper, and legal sense, it signifies everything that may be holden, provided it is of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus, the word liberum tenementum, franktenement, or freehold, is applicable not only to land and houses, but also to offices, rents, commons, tithes and the like; and a franchise, an office, a peerage, &c., are legally

speaking tenements. Taking it in this sense, persons holding offices in fee or for life, whether they concern lands or not, may be said to have a freehold therein; and, being duly rated to the land-tax, have frequently been admitted to vote at the elections of knights of the shire. It may be doubted whether persons possessed of public offices in fee or for life ever were suitors at the county courts, and, therefore, if the elections of knights of the shire were in ancient times confined to such suitors, as has been asserted with much appearance of reason whether they were permitted to vote with them there. But recent *usage had confirmed them in the franchise, and, from the 18 *111] G. 2 to the decision of the Middlesex committee hereafter mentioned, the question had been whether officers claiming to vote were duly assessed to the land-tax for the limited time, not whether they possessed the necessary estate." [WILLIAMS, J.-At p. 67, Serjeant Heywood says: "The committee which sat upon the election for Middlesex in 1804, after a long discussion and able argument (see Ord's Case, 2 Peckwell, 33), laid down the general principle, that the holder of an office for life, not having a freehold interest in house or land in right of his office, had no right to vote.'" And the learned serjeant adds: "This rule is so consonant to the ancient simplicity of the common law, and so reasonable in itself, that it has been universally approved of and adopted at all the county elections which have since taken place."] The resolution of 1804 was not justified by the state of the statute law at that time or now in relation to county votes: see 7 & 8 W. 3, c. 25, 10 Ann. c. 23, s. 2, 18 G. 2, c. 18, ss. 1—5, 20 G. 3, e. 17, s. 1, 22 G. 3, c. 41, 28 G. 3, c. 36, s. 6. The only statutes bearing upon the subject since the year 1804, are the Reform Act, 2 W. 4, c. 45, which passed for the purpose of extending the franchise, and the Registration Act, 6 & 7 Vict. c. 18, which was directed to another object. [BYLES, J.-Are you right in saying that the Reform Act did not restrain the franchise?] The 18th section(a) certainly *112] *places some limitation on the right of voting in respect of freeholds for life; but there is nothing in that section to prevent one who holds a freehold office for life from voting: the language of the section must be construed with reference to the subject-matter. The 22d section repeals the 18 G. 2, c. 18, s. 3, enacting, that, "in order to entitle any person to vote in any election of a knight of the shire or other member to serve in any future parliament, in respect of any messuages, lands, or tenements, whether freehold or otherwise, it shall

(a) Which enacts "that no person shall be entitled to vote in the election of a knight of the shire to serve in any future parliament, or in the election of a member or members to serve in any future parliament for any city or town being a county of itself, in respect of any freehold lands or tenements whereof such person may be seised for his own life, or for the life of another, or for any lives whatsoever, except such person shall be in the actual and bonâ fide occupation of such lands and tenements, or except the same shall have come to such person by marriage, marriage settlement, devise, or promotion to any benefice or to any office, or except the same shall be of the clear yearly value of not less than 107. above all rents and charges payable out of or in respect of the same; any statute or usage to the contrary notwithstanding: Provided always, that nothing in this act contained shall prevent any person now seised for his own life, or for the life of another, or for any lives whatsoever, of any freehold lands or tenements in respect of which he now has, or but for the passing of this act might acquire, the right of voting in such respective elections, from retaining or acquiring, so long as he shall be so seised of the same lands or tenements, such right of voting in respect thereof, if duly registered according to the respective provisions hereafter contained."