[*4

reading of the section; nor is it agreeable to *the exposition it has received in all the cases. KEATING, J.-In Adey, app., Hill, resp., the case was lodged with the masters, and the notices served on the 2d of November; and, the 11th being the day appointed for the hearing, the Court held the notice insufficient, and refused to postpone the case.]

ERLE, C. J.-I feel bound to refuse this application. The subject underwent elaborate discussion in the case of Adey, app., Hill, resp. Wilde, C. J., there says: "The decision of the revising barrister is to be conclusive, subject to an appeal to this court under certain condi tions. One of these conditions imposed upon the appellant is, that he shall give or send a notice, signed by him, to the respondent, stating his intention to prosecute the appeal; and, to make this the more imperative and emphatic, a subsequent clause enacts that 'no appeal shall be heard by the Court (of Common Pleas), in any case where the respondent shall not appear, unless the said appellant shall prove that due notice of his intention to prosecute such appeal was given or sent to the said respondent ten days at least before the day appointed for the hearing of such appeal.' When the legislature is thus for the first time giving to a court of law jurisdiction, over rights that have always been the subject of such watchful jealousy, it is in a peculiar manner incumbent on the Court to confine itself strictly within the limits prescribed for it. A deliberate deviation from an enactment so express and positive in its terms would induce a mischief much greater than any inconvenience that can arise from the blunder of the appellant in this case." And that has been followed by many cases since. We cannot, therefore, accede to this application. When the cases are called on in their turn, the Court will dispose of them. *The rest of the Court concurring,

Fawcett took nothing.

[*5

The cases being called on for argument on the 15th of November, and no one appearing for the respondents,

Fawcett asked the Court to reconsider its decision of the 11th, and urged the hardship of the case upon the appellant, who could not foresee that the Court would appoint so early a day for the hearing as must necessarily in some cases preclude the possibility of the 64th section being complied with, inasmuch as the 32d section of the statute enables the revising barrister to hold his sittings down to the 31st of October.

ERLE, C. J.-I do not feel at liberty to entertain this application. We are here exercising a special and limited jurisdiction. The point now pressed upon our attention has received the deliberate decision of this Court more than once. The ten days' notice to the respondent must be given ten clear days before the first of the days appointed for hearing these appeals. All the arguments which have been urged before us were strenuously pressed and duly considered upon the occasions which I have alluded to. The Court more than once has

declined to yield to the suggestion of hardship where the day of hearing was appointed within the first ten days of the term, provided there has been reasonable time since the decision took place for giving the notice. If this had been res integra, I should probably have

thought that the affidavit disclosed a reasonable excuse for the delay in these cases. I have looked carefully into the matter: and, seeing *that the decisions of the revising barrister took place so long ago *6] as the 11th of October, I do not see how we can, consistently with the numerous decisions, allow this notice to avail. We will take care that the cause of complaint does not arise again.

WILLIAMS, J.-I am entirely of the same opinion. I do not see how the cases which have been referred to could, consistently with the provisions of the statute, have been differently decided.

BYLES, J.-I agree with my Brother Williams that we have no power to accede to this application. We are sitting here in the exercise of a new and peculiar jurisdiction; and I think we should be highly censurable if we trespassed in any degree beyond the limits which have been marked out for us.

KEATING, J.-I agree with the rest of the Court in thinking that the words of the statute, as well as the decisions which have been referred to, leave us without any discretion on the subject.

Appeals dropped.(a)

(a) In Grover, app., Bontems, resp., 4 C. B. 70 (E. C. L. R. vol. 56), 1 Lutw. Reg. Cas. 544, it was held that an application by the respondent for leave to deliver paper-books after the proper time, did not dispense with the notice required to be served upon him by the 6 & 7 Vict. c. 18, ss. 62, 64.

ROBERT BRIDGEWATER, Appellant; BENJAMIN CHANDLER DURANT, Respondent. Nov. 11.

The claimant, as one of the lay clerks of Windsor, occupied a house of more than 107. a year value. It appeared that he was appointed a lay clerk by the dean and canons of Windsor, in whom was the freehold; that a certain number of houses are occupied by the lay clerks, but that, as there were more lay clerks than houses, the juniors on their appointment received 201. additional salary until one became vacant; that then the salary was reduced by the 20., and the clerk had the vacant house; that his residence therein was not necessary for the performance of his duties; but that he could not let the house without the consent of the dean and canons. There was no evidence of any statutes regulating the appointment of the lay clerks, though it was supposed that some existed; but the claimant stated that he believed he held his office for life, or so long as he did his duties :-Held, that the claimant was not entitled to be registered as a voter for the borough, either as owner or as tenant, under the 2 W. 4, c. 45, s. 27.

AT a Court held for the revision of the list of voters for the borough of New Windsor, Robert Bridgewater claimed to have his name inserted in the list.

The claimant has occupied a house in the lower ward within the borough about fourteen years. He occupies as a lay clerk, to which office he was appointed by the dean and canons of Windsor seventeen years ago. The freehold of the house is in the dean and canons. Its value is above 107. a year. It is extra parochial. A certain number of houses are occupied by lay clerks. There are more lay clerks than houses; and the juniors receive 201. a year more salary till a house becomes vacant. The salary is then reduced by the 201. The lay clerk may then take the house, but is not obliged to reside.

He can

perform all his duties without residing in the house; but he cannot let it without the permission of the dean and canons.

The claimant on his appointment took the oath of allegiance and some other oath. He believes that he holds his office for life, or so long as he does his duties. He has never seen the statutes of the dean and canons. He has no doubt there are such statutes; but he has no right of access to them, and he has made no attempt to see them or procure any evidence from them. He knows no book relating to his office but the check *book, in which his name is entered, and which he sees once a month.

[*8

The revising barrister held that these facts did not show a sufficient occupation either as owner or tenant, and refused to insert the claimant's name on the list of voters.

If the Court should be of opinion that his decision was erroneous, the claimant's name was to be inserted in the list, thus,

Six other persons claimed to be placed on the list for similar quali fications; and their cases were consolidated with the principal case. Macnamara, for the appellant.-The claimant was entitled to be registered as the occupier of a house as tenant within the 27th section of the Reform Act, 2 W. 4, c. 45. He does not occupy as servant, and therefore the case is distinguishable from those in which it has been held that one who is required to occupy premises with a view to the more efficient performance of his duties as surgeon to a hospital, or as hall-keeper, does not become a "tenant" within the meaning of the statute, Dobson, app., Jones, resp., 8 Scott N. R. 80, 5 M. & G. 112 (E. C. L. R. vol. 44), 1 Lutw. Reg. Cas. 105; Clark, app., Bury St. Edmunds (Overseers), resp., 1 C. B. N. S. 23 (E. C. L. R. vol. 87), 1 K. & G. 90. The case falls within the principle laid down in Hughes, app., Chatham (Overseers), resp., 7 Scott N. R. 581, 5 M. & G. 54, 1 Lutw. Reg. Cas. 51. There, an officer in the service of Government had as such a house in the dock-yard at Chatham for his *residence: he paid no rent in money for it, but had it as part remuneration for his services: and no part of it was used for [*9 public purposes: if he had not been allowed the house, he would have had an allowance for a house, in addition to his salary: and this was held to be an occupation as "tenant" within s. 27. In giving judgment, Tindal, C. J., there says: "There is no inconsistency in the relation of master and servant with that of landlord and tenant: a master may pay his servant by conferring on him an interest in real property, either in fee, for years, at will, or for any other estate or interest; and, if he do so, the servant then becomes entitled to the legal incidents of the estate, as much as if it were purchased for any other consideration. But it may be that a servant may occupy a tenement of his master, not by way of payment for his services, but

for the purpose of performing them: it may be that he is not permitted to occupy as a reward, in the performance of his master's contract to pay him; but required to occupy, in the performance of his contract to serve his master." Referring to that decision, Tindal, C. J., in delivering the judgment of the Court in Dobson, app., Jones, resp., thus expresses himself: "In delivering our opinion upon a former case, we laid down at some length the principle upon which we thought the class of cases to which the present appeal belongs ought to be decided; and we drew the distinction between those cases where officers or servants in the employ of the Government are permitted to occupy a house belonging to the Government as part remuneration for the services to be performed, and those in which the places of residence are selected by the Government, and the officers or servants are required to occupy them with a view to the more efficient performance of the duties or services imposed upon them. And upon that occasion we declared our *opinion that those officers or servants who fell *10] within the first description might properly be considered to occupy as tenants, although the residence was allotted to them as such officers or servants, and although they might, if such residence had not been allotted to them, have had an additional allowance for lodg ing-money; whilst, at the same time, we stated that the relation of landlord and tenant could not be created by the appropriation of a particular house to an officer or servant as his residence, where such appropriation was made, not with a view to the remuneration of the occupier, but to the interest of the employer and the more effectual performance of the service required from such officer or servant; upon the same principle as the coachman who is placed in rooms of his master over the stable, or the gardener who is put into a house in the garden, or the porter who occupies the lodge at a park-gate, cannot be considered to occupy as tenants, but as servants merely, whose possession or occupation is strictly and properly that of their master." [ERLE, C. J.-Where the occupation by the servant is permissive only, and by way of part remuneration for his services, he is substantially paying rent for the premises.] That is precisely the case here. The case finds that the juniors receive 207. a year more salary till a house becomes vacant. The restriction against letting cannot make any difference: that is common to many tenancies. [WILLIAMS, J.— What sort of a tenant do you say the claimant is ?] It is unnecessary to define the nature of the tenancy it is enough to say that he is a tenant of some sort. [KEATING, J.-A tenancy at will would be sufficient.] Neither is this like the cases where an occupation of a house or rooms as the recipient of charity has been held to be insufficient to confer the franchise: see Heath, app., Haynes, resp., 3 C. B. N. S. 389 (E. C. L. R. vol. 91); Heartley v. Banks, 5 C. B. N. *11] *S. 40 (E. C. L. R. vol. 94). In the former the occupation was held to be an occupation by the corporation in the persons of its several members: and in the latter the legal estate was in the dean and canons of Windsor.

Griffits, for the respondent.-Upon the evidence which the claimant. thought fit to lay before him, the revising barrister was well warranted in coming to the conclusion that his claim was not well founded. was entirely a question of fact. In Heath, app., Haynes, resp., the

It

.

inmates were rated in respect of their several occupations, and yet they were held not to occupy as tenants. Here, as there, there is an entire absence of anything in the circumstances under which the occupation arises which creates either expressly or by implication the legal relation of landlord and tenant. [BYLES, J.-It is expressly found that the lay clerk is not bound to reside in the house provided for him. ERLE, C. J.-I gather from the statements in the case that the dean and chapter pay the lay clerk a salary and put him into a house, the salary being diminished by 207. a year as soon as a house is provided for him; that residence in the house is not necessary for the performance of the duties of the office; and that the lay clerk may, with the permission of the dean and chapter, let the house.] All these statements must be taken with the fact that the statutes were not produced. [BYLES, J.-There is nothing upon the face of the case that is inconsistent with this person being strictly a tenant at will. If the proper evidence had been brought before the revising barrister, as in Heartlev, app., Banks, resp., the same result must have been come to. [WILLIAMS, J., referred to Gleaves v. Parfitt, 7 C. B. N. S. 838 (E. C. L. R. vol. 97), where a vicar choral of the cathedral church of Wells was held to have such an interest in his house of residence as to render his *personal representative liable to an action at the suit of his successor in the vicarage for dilapi[*12 dations.] The case states that the freehold is in the dean and canons; and there was no sufficient evidence before the revising barrister as to the real position of the claimant, to justify him in coming to the con clusion that he occupied the house in question in the character either of owner or tenant.

Macnamara, in reply. It is surmised, but it is not found, that there are any statutes which could throw any light upon the nature and extent of the claimant's interest. But enough appears to warrant and to require the conclusion that he occupied as a tenant of some kind. There was no evidence in Hughes, app., Chatham (Overseers), resp., to show how the tenancy was commenced. Its existence was assumed in the absence of evidence to the contrary. Cur. adv. vult. ERLE, C. J., on a subsequent day, delivered the judgment of the court:(a)

In this case the revising barrister states the facts which were proved relating to the occupation of a house by the claimant, and suggests other facts which were not proved, and decides that he is not satisfied that the claimant, a lay clerk, occupied his house either as owner or as tenant within the statute.

Occupation alone of a house is not sufficient to qualify. Thus, occupation as a member of a corporation aggregate (Heath, app., Haines, resp., 3 C. B. N. S. 389 (E. C. L. R. vol. 91)), or as a receiver of charitable bounty (Heartley, app., Banks, resp., 5 C. B. N. S. 40 (E. C. L. R. vol. 94)), or for purposes *connected with services to be performed (Dobson, app., Jones, resp., 8 Scott N. R. 80, 5 [*13 M. & G. 112 (E. C. L. R. vol. 44), 1 Lutw. Reg. Cas. 105; Clark, app., The Overseers of Bury St. Edmunds, resp., 1 C. B. N. S. 32 (E. C. L. R. vol. 87), 1 K. & G. 90), or under an appointment from governors of a charity at their discretion (Davis, app., Waddington, resp., 8 (a) The argument took place before Erle, C. J., Williams, J., Byles, J., and Keating, J.