side of the house, the landlord occupying also two rooms on the ground-floor and the rooms above on the other side of the house, with separate staircases between, but with one outer door and house-passage common to both, of which door each had a key; and he (the appellant) relied on the cases of Score, app., Huggett, resp., 7 M. & G. 95 (E. C. L. R. vol. 49), 8 Scott N. R. 919, 1 Lutw. Reg. Cas. 198, and Toms, app., Luckett, resp., 5 C. B. 23 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 19. in support of his contention.

The respondent contended, that, upon these facts, the appellant was not qualified: and he relied on Pitts, app., Smedley, resp., 7 M. & G. 85, 8 Scott N. R. 907, 1 Lutw. Reg. Cas. 168, and Wansey, app., Perkins, resp. (Hill's Case), 7 M. & G. 151, 8 Scott N. R. 978, 1 Lutw. Reg. Cas. 252, in support of his contention.

In these four cases the subject of occupation was in substance the same, namely, a part of a house let for lodgings: but the occupation itself was made the subject of distinction. In two of them, the lodger was held to be qualified because his occupation was as tenant: in the other two, the lodger was held not to be qualified because his occupation was as lodger.

In the present case, we are of opinion that the respondent is entitled to succeed; and we rest our *judgment, not upon the kind of occupation described in the statement, but upon the subject of [*41 occupation. We consider that the qualification fails, because the subject of occupation was, not a house, but only a part of a house, without any actual severance from the residue. In support of this judg ment, we propose to refer to the statute on the construction of which the case depends, and then to consider the four cases cited, and the point for decision in each, together with the distinction between occupation as tenant and occupation as lodger, which does not appear to us to be well founded. We afterwards give our reason for thinking that a part of a house used for residence was not intended by the legislature to qualify under the word "house," or under any of the words that follow relating to qualification.

According to our construction of the statute, the qualification is compounded of four elements,-tenement, value, occupation, and estate. There must be for tenement a house, warehouse, counting-house, shop, or other building analogous thereto : there must be for annual value 101.: there must be occupation, that is, actual exercise of the rights of an owner in possession, during the requisite time: there must be an estate in the tenement, either of fee or less. If these four distinct elements are combined in the claimant, he is qualified; if otherwise, he is not. Now, although they must exist in combination, in order to qualify, still, in inquiring into the existence of the combination, each element must be separately ascertained,-first, is the claimant tenant?-secondly, is he occupier?-thirdly, is the tenement sufficient in value, and, fourthly, in kind?

In the cases above cited, the question is made to turn upon the nature of the occupation. In Pitts, app., Smedley, resp., 7 M. & G. 85 (E. C. L. R. vol. 49), 8 Scott N. R. 907, 1 *Lutw. Reg. Cas. 168, [*42 Pitts was occupier and tenant of the second and third floors, and had no key to the outer door. The revising barrister's question for the opinion of the Court, was, whether Pitts had such an exclusive

occupation of the floors as to qualify. Tindal, C. J., says the question is, whether the claimant occupied as owner or tenant; it does not turn so much on the description of the premises as on the nature of the occupation; and, because he has not the key of the outer door, and the landlord resides on the premises, he does not occupy as tenant.

In Wansey, app., Perkins, resp. (Hill's Case), 7 M. & G. 151 (E. C. L. R. vol. 49), 8 Scott N. R. 978, 1 Lutw. Reg. Cas. 252, Hill was occupier and tenant of the second floor. The landlord resided on the premises; and each had a key of the outer door. The revising barrister referred the question "on the sufficiency of the qualification." The judgment was, that the claimant was a lodger, because the landlord remained in possession of the rest of the house.

In Score, app., Huggett, resp., 7 M. & G. 95 (E. C. L. R. 49), 8 Scott N. R. 919, 1 Lutw. Reg. Cas. 198, Score was tenant and occupier of two rooms on the second floor: the whole house was let in separate lodgings, and each lodger had a key to the outer door: the landlord did not reside: the revising barrister referred the question "whether the occupation of such two rooms was sufficient to qualify." The claim in the list had been for "apartments." The Court held that no question was reserved on the sufficiency of that description, and decided for the qualification, because the claimant had the key of the outer door. The Court may have considered that the barrister confined his question to the occupation, and excluded all question on the tenement: and in that view the decision does not conflict with our present judgment.

*43] *In Toms, app., Luckett, resp., 5 C. B. 23 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 19, Toms was tenant and occupier of the first floor in the house. The landlord occupied the shop and parlour, but did not sleep there. The house was let out in lodgings, and each lodger had a key to the outer door. The revising barrister referred the question whether the occupation of Toms was sufficient to qualify, as the landlord did not sleep on the premises, and as Toms had no exclusive control over the outer door. The judgment is, that the occupation was sufficient, the exclusive control of the outer door not being essential, and the occupation of part by the landlord in the day not having the effect to disqualify which his sleeping there might have had. Three of the Judges add, that a part of a house is a sufficient tenement, being comprised under the words in the statute "other building;" as to which, by referring to the question of the revising barrister, it seems that the point was not before the Court: and it should be noted that Mr. Justice Williams doubted the correctness of the judgment of his brethren on both points, but did not formally dissent from their judgment.

In these four cases, it seems to us, that, if the revising barrister had referred to the Court the true question arising upon the statement of the facts, it would have turned entirely on the sufficiency of the tenement, the tenancy, the occupation, and the value being clear.

It seems to us that a lodger is a tenant, if the premises are let to him. It was so decided in Newman v. Anderson, 2 N. R. 224. There, in replevin, the avowry was for rent of ready-furnished lodgings let at 13s. per week to the plaintiff, and "held by him of the defendant as his tenant thereof." The letting was proved as laid, and thereupon

there was judgment on the avowry for the defendant. If the occupier of the premises is *tenant of them, he occupies them as tenant: [*44 and, if the occupier is tenant of a sufficient tenement as far as concerns the sufficiency of his occupation, it seems to us immaterial to inquire whether he has the key of the outer door; because cases may be put where he would be tenant and occupier, and qualified, although the key should be withheld: for, if that which is one house in one sense, being under one roof, be divided by the structure into several flats constituting several houses in another sense, has one outer door to the street, of which a porter has the key and the sole control for the security of the tenants, each flat is a sufficient tenement, and the qualification is gained, although the tenant has no key to the outer door: and it is the same, although the porter resides on one of the flats, and is owner of all the others under the roof. Again, if the occupier is tenant, it seems to us immaterial to inquire whether he has an uncontrolled access to the house; for, if a house be let to A. without any access except over the yard of B., and B. neither gives nor refuses leave, and A. passes over the yard by sufferance, the mere liability to interruption in the access would not prevent his being qualified. Again, it seems immaterial to inquire whether the tenant of a house has exclusive possession, that is, if exclusive possession means exemption from servitudes or rights of entry reserved to the landlord. Such servitudes and rights of entry affect the value of the tenement, but not its sufficiency in kind.

Therefore we think that the true question in the cases cited, and in the present case, turns on the nature of the tenement occupied. Is it such property as the legislature intended to make a qualification? Now, the statute required some permanent occupation of, and some independent interest in, the property. The permanence prevents the sudden creation of *votes. The ownership or the tenancy, with rating, indicates some independence: in other words, the re[*45 quirement of at least a tenancy excludes some occupations of less independence; such as the occupations of servants for their service; for example, porters of the lodge, gardeners of the dwelling in the garden; and also such as that of the surgeon for the hospital of the rooms therein (Dobson, app., Jones, resp., 5 M. & G. 112 (E. C. L. R. vol. 44), 8 Scott N. R. 80, 1 Lutw. Reg. Cas. 105); also the occupation of premises by objects of charity occupying under the permission of the trustees of the charity, Davis, app., Waddington, resp., 7 M. & G. 37 (E. C. L. R. vol. 49). 8 Scott N. R. 807, 1 Lutw. Reg. Cas. 159; Heartley v. Banks, 5 C. B. N. S. 40 (E. C. L. R. vol. 94), 1 K. & G. 219.(a) These and the other cases of occupation inferior in right to a tenancy are excluded by the requirement that the occupier must be at least the tenant. But, if he is tenant, he occupies as tenant, and this part of the qualification is complete; and it is immaterial as to this under what denomination of tenant he is classed, whether as lodger, termor or lessee, or other name.

As to the kind of tenement which qualifies, the statute has described two classes of buildings, namely, those used for residential and thos used for commercial purposes,-house, for residence, warehouse. counting-house, shop, or other analogous building, for commerce. (a) And see Freeman, app., Gainsford, resp., post, p. 68.

C. B. N. S., VOL. XI.-4

When the claim is in respect of a house, we consider that the legislature did not intend to create a part of a house used for residence, and not for commerce, a tenement sufficient to qualify.

A part of a house cannot truly be said to be a house, unless the word "house" is used in two senses. In Judson, app., Luckett, resp., 2 C. B. 98 (E. C. L. R. vol. 52), 1 Lutw. Reg. Cas. 490 (cited below more fully), a part of a house in one sense was in another sense a whole house, by reason of actual severance. Neither do we consider *that the legislature, under the term "other building," meant *46] to include a part of a house used for residence; for, the qualification of householder was frequently a qualification before the Reform Act; and in respect thereof it was always held that a lodger was not qualified as a householder. In Fludier v. Lombe, Cas. temp. Hardw. 307, a claimant was qualified to vote if he was a householder and the sole occupier of his house. One objection to the plaintiff's vote was, that he had let part of his house in lodgings, and so was not the sole occupier: but Lord Hardwicke ruled to the contrary; and he says,— "A lodger was never considered by any one as the occupier of a house; it is not the common understanding of the word; neither the house nor any part of it can be properly said to be in the tenure and occupation of the lodger." Since the Reform Act, the same opinion is conveyed in the decisions holding that occupation as a lodger did not qualify. The common meaning of "lodgings" is, a part of a house used for residence. If the legislature had intended to make lodgers qualified, we think it would not have been left to obscure conjecture from the words "other building."

In Wright, app., The Town Clerk of Stockport, app., 7 Scott N. R. 561, 5 M. & G. 33 (E. C. L. R. vol. 44), 1 Lutw. Reg. Cas. 32, the occupation of a separate room in a cotton-spinning factory was held to qualify, because each separate room was by reason of actual severance, with a separate outer door, an entire building in one sense, though part of the entire building (the factory) in another sense.

Then, assuming this to be the correct construction of the statute, the question here is brought to the point whether the rooms occupied by the appellant are a "house." We think that they were correctly decided by the revising barrister not to be a house within the *47] meaning of the statute, because they formed part of a house when they were let, and there was no actual severance of the appellant's part from the other part.

No authority earlier than Score, app., Huggett, resp., 7 M. & G. 95 (E. C. L. R. vol. 49), 8 Scott N. R. 919, 1 Lutw. Reg. Cas. 198, and Toms, app., Luckett, resp., 5 C. B. 23 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 19, was cited to show that a part of a house may become a "house," without any actual severance, by reason of some conventional arrangement in respect of the keys of the outer door, or the pernoctation of the landlord: and the authorities are uniform to show, that, by actual severance, a part of a house became changed into a house, and without such severance the change would not be effected. In Kitchin on Courts 99, it is said: "If the inheritor of a house let a certain part in which he dwells, and severeth it from the other part, and maketh several doors to the high street, it is now as two houses: otherwise it is if they have but one door to the high street."

In Monks v. Dykes, 4 M. & W. 567,† Parke, B., says of the doctrine of Lord Coke that a chamber may be domus mansionalis in law, that it refers to a house divided into several chambers, with separate outer doors, and that neither in law nor in common sense can a man be said to be in possession of a dwelling house, when he is a mere lodger. On the principle of actual severance, chambers of inns of court were held to be a dwelling-house, in Evans and Finch's Case, Cro. Car. 473. In The King v. Great and Little Usworth, 5 Ad. & E. 261 (E. C. L. R. vol. 31), 6 N. & M. 811 (E. C. L. R. vol. 36), the question was, whether each floor of that which was in one sense one house was in law a separate and distinct dwelling-house: it appeared that each floor had a separate staircase on the outside, and a separate outer door: and, on account of that actual severance, the floor was decided to be a separate and distinct dwelling-house: the house was the floor.

[*48 In Judson, app., Luckett, resp., 2 C. B. 197 (E. C. L. R. vol. 52), 1 Lutw. Reg. Cas. 490, the claimant occupied the upper part of the house and the kitchen, having a distinct and separate entrance thereto. The landlord occupied the ground-floor, having a distinct and separate entrance thereto. The claim in the list was for part of a house. The judgment is, that the claimant was qualified, because a part of a house in one sense may be so completely separated from the residue as to constitute a house in another sense. The description "part of a house" might be true according to common understanding of the word "house," and yet may denote such a house in another sense as will qualify. In this judgment the qualification is made to turn on the actual severance.

The law relating to burglary is for the protection of human abodes during the hours of sleep and a distinction is made for that purpose which has no analogy with qualification.

The general rule is, that a part of a house, in the common understanding of the word, does not become a house in law, unless there be actual severance. In Leach's Crown Cases 90, in the notes to Roger's Case, Lord Holt's opinion is reported thus:-"If inmates have several rooms in a house, of which rooms they keep the keys, and inhabit them severally, yet, if they enter into the house at one outer door with the owner, these rooms cannot be said to be the dwelling-houses of the inmates; but the indictment ought to be, for breaking the house of the owner." If the owner does not reside on the premises, the crime of feloniously breaking into the sleeping abode of a lodger in the night is precisely the same as it would be if the landlord slept there and, in that case, it is held that the abode of the lodger may be called his domus *mansionalis. This exceptional rule, de[*49 pending on the reasons above assigned, is no ground whatever for holding lodgings to be a "house" within the meaning of a statute requiring the claimant of a vote to be the occupier of a house: and yet these exceptional cases were pressed on the Court in Toms, app., Luckett, resp., 5 C. B. 23 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 19, as authorities for holding that lodgings became a "house," if the owner did not sleep on the premises.

For these reasons, and on these authorities, we hold that the quali fication failed in respect of the subject of occupation. Decision affirmed.