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ing than would, in ordinary cases, constitute a tenancy 17th century, fixed at 56. The history of this hospital, for a year. Now the rule of law is, that a renting of and of the neighbouring hospital of St. John's, a like a tenement for an indefinite period, and an occupation foundation, is to be found in Boy’s “History of Sandfor a year, constitute a tenancy for a year. In the wich," p. 1792, &c. The case stated that the members present case it was conceded that the tenancy could formed a corporation by prescription, that each indinet be considered a monthly tenancy by reason of the vidual occupied a separate house, which he himself restriction upon quitting or determining the tenancy. kept in repair, that the income of the landed estates The monthly rent being excluded in determining the of the hospital was equally divided among the memcharacter of the tenancy, to what other conclusion can bers, there was no instance of any member having been we come than that it was a hiring of the tenement turned out, and that they had always voted before by indefinite as to character, but terminable at a month's the usage of the borough. The funds of the hospital notice on either side on any of the specified quarter- contributable to the support of the members were days! And the house having been actually occupied spoken of in the rules of the hospital as “the graunder that hiring for upwards of two years, it appears tuities and other benefits by law belonging to them.” to us it must be considered to have been an occupation The present Charity Commissioners and the Mayor of under a hiring for a year.

Sandwich had a power of visiting the hospital; but it Many cases have been decided with reference to did not appear that they had ever ejected, or could settlements by hiring and service which establish that eject, a member of it. The revising barrister allowed a hiring at weekly wages, determinable at a month's the vote. notice, and service under such hiring for more than a Fear, gives a settlement. Regina v. Hampreston (5 T.

Hayes, Serjt. (Bourke with him), for the appellant.

The claimant is not the holder of an equitable freeR. 205) and Regina v. Great Yarmouth (5 M. & S.

hold, so as to entitle him to vote, according to the 114). These cases are analogous to the present so soon

cases of as the effect of the statute 6 Geo. 4, c. 57, s. 2, is determined. We are, therefore, of opinion, that the

Paulkner v. The Overseers of Boddington, 3 C. B. rule for quashing the order of Sessions must be made

(N. s.) 412; absolute.

Heartly v. Banks, 5 C. B. (N. s.) 40 ;
Rule absolute.

Freeman v. Gaisford, 11 C. B. (N. S.) 68.
[BYLES, J.—That was not the objection ; the objec-

tion was, that the respondent had received “parochial C. P. SMITH, Appellant, v. Hall,

relief or other alms," not that he had no estate.] 17 Nov. 1863. Respondent.

Then, it is stated that the claimant is a member of

a brotherhood, all of whom are elected because they Registration Appeal-Right to Vote-Receipt of have “no competent means to live.” They receive

Parochial Relief or other Alms—2 Will. 4, the alms merely ex gratia. They have no title as of c. 45, s. 36.

right to the funds.

He cited,

The Aylesbury Case, Elliott on Qualification, &c., Persons in receipt of eleemosynary incomes, in which

257 ; they have a legal interest, are not disqualified from The Taunton Case, 1 Doug. 370 ; Coling by 2 Will. 4, c. 45, s. 36.

Rogers' on Law of Elections, 171 (last ed.) Semble, a decision of a parliamentary committee on

Welsby, for the respondent. a right to vote, primâ facie establishes the right.

It being undenied that they are qualified, unless the This was an appeal from the decision of the revising 36th section of 2 Will. 4, c. 45, disqualified them, I barrister for the borough of Sandwich. In this case submit that the members of this hospital are neither the claimant was an inhabitant of the borough of in receipt of parochial relief nor “other alms," Sandwich, and was objected to as disqualified from Rogers' Law of Elections, 171 ; voting, on the ground that he was in receipt of The Bedford Charity, 2 Doug. 123. Jarochial relief or other alms. It appeared that the The cases show that the Legislature intended only claimant was a member of the hospital of St. Bar- those to be disqualified who are receiving alms contritholomew's, in Sandwich, which was founded about buted to the poor-rate. eight hundred years ago. In the earliest collection

[WILLIAMS, J., referred to The Borough of Sandwich preserved of rules of this hospital, it was provided that case, cited in none should be admitted members of the hospital un- Heywood on County Elections, 265.] less of the age of 50 years and upwards, except decayed

Hayes, Serjt., in reply. jurats, lame and impotent persons, and such as were unfit for husbandry, that they should be inhabitants ERLE, C.J.-I am of opinion that these votes are of the town of Sandwich, and having no competent good. These persons have a right to vote, unless dismeans to live. The minimum age of candidates for qualified by the 36th section of the Reform Act. I almission was at first 40, but was afterwards, in the cannot find that the recipients of the proceeds of these


lands of the hospital are disqualified at the passing of the jury could say anything to the contrary; the outthe Reform Act; on the contrary, the Sandwich Case, going tenant never surrendered, but he sometimes referred to by my Brother Williams, shows that a appeared, sometimes kept away, during the admittance parliamentary committee had considered the matter, There were no fines, escheats, reliefs, or right ď and had decided that they were qualified. The mean- common, but the lord could seize the land at the tim ing of this 36th section is, that people who are in of the ceremony of admittance, if and until the ren: receipt of alms, in some way contributed to the relief due to him was paid. The rent from time immemoria. of the poor, are disqualified.

had been fixed and small. No tenant had ever been

evicted by the lord. There was no livery of seisin. WILLIAMS, J.-I agree. The circumstances under

no customary grant. The barrister allowed the vote. which the revenues of this hospital are shared, are not such as impose a disqualification upon the members T. Chitty for the appellant. within the meaning of the 19th section. parlia- The claimants were no copyholders, but mere mentary committee has so decided, in effect. Serjeant squatters ; they want all the essential characteristics Shepherd, in his work on Elections—a work of great of copyholders. There can be no other tenures than accuracy-quoting from Heywood's books, says :- freehold and copyhold, for the 12 Chas. 2, c. 24, de

Perhaps the best rule is to distinguish between stroyed all others. The tenants are probably tenants charities which are of such a nature as to imply that from year to year. He cited, the partaker of them is in a state of indigence and Co. Cop. 14; abject dependence, and those from which no such Co. Litt. 58 ; inference can be drawn. With respect to the former, Vin. Abr. “Copyholder,” “Grant;" they, like parochial relief, may work a disqualification 1 Com. Dig. 266 ; of those who receive them, by proving their incapacity Kitchen on Courts, 168 ; to exercise a will of their own in the choice of a Stark. Ev. 239 (2nd ed.); representative.

Sug. V. & P. 422 (2nd ed.).

BYLES, J.-I agree. I collect from the case that

Mellish, Q.C., for the respondents. this is the case of a corporation by prescription, and the proceeds of the landed estates of the hospital are, parted from the ancient custom.

The Court will presume that the parties have de

It is quite unneces. by law, divisible among the brethren. Each lives on his own property, and is entitled to receive his share sary for me to make out that the tenants are copy

holders of inheritance ; they may be tenants for life, out of the revenues of all the landed estates.

having some limited right of nominating a successor, In the cases cited by my Brother Hayes, there was

Scriv. Cop. 22, 43 (4th ed.). none in which there existed a legal right to receive the alms in question. The case referred to by my Brother fixed small rents, they have never been evicted ; arrears

Here the tenants are summoned on a jury, they pay Williams, is a decision upon this very point.

of rent are a charge upon the land itself; these facts KEATING, J., concurred.

are inconsistent with a tenancy at will, or from year Judgment for the respondent. to year. (He was stopped by the Court.]

C. P. GARBUTT, Appellant, v. TUDOR,

T. Chitty, in reply. } 24 Nov. 1863. Respondent.

The argument on the other side makes out that this is a freehold customary tenure ; this tenure, I submit


was extinguished by the 12th Charles 2, c. 24, having Customary Freeholds2 Will. 4, c. 45, s. 19.

been in this case, as appears in the case

, existent from

time immemorial. He also cited, Tenants of customary freeholds are entitled to vote by virtue of 2 Will. 4, c. 45, s. 19, except in such

Passey v. Pittingham, 17 C. B. 299. special instances of this tenure as do not allow the

ERLE, C.J.—The revising barrister was right. I tenants permanent estatcs.

cannot say what the estate is, but it is a permanent This was an appeal from a decision of the revising interest, and the question is, is it a freehold interest! barrister for the North Riding of Yorkshire.

There are no signs of its being a tenure at will, nor The claimant possessed certain land in the manor does it appear to be the case of mere squatters on the

copyhold or the history were looked into, it would be found that the 19th section of 2 Will. 4, c. 45. The custom of their estate gradually grew up. From the facts stated the manor was very peculiar. The tenants, of whom by the revising barrister, I think that the claimant has the claimant was one, were liable to be summoned on

a permanent estate in the land, and the statute says, a jury on the admittance of a new tenant, who was that any one having such an estate of any tenure entered by the steward on the roll as admitted, unless except freehold, is entitled to a vote.

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} Jarman v. Lucas.

WILLIAMS, J.-I am of the same opinion. There Keane, in support of the rule, contended that, from are many curious tenures, especially in the north of the silence of the statute on the subject, the LegisEngland, and they are called customary freehold or lature did not intend to interfere with the old laws tenant-right, and there has been much controversy as regarding infants. to whether they are copyhold or freehold ; but here it

The Court (Erle, C.J., Williams, Byles, and is immaterial whether they are the one or the other.

Keating, JI.)

The judgment must be set aside, but It is difficult to say of what tenure they are ; perhaps

without costs. they were encroachures upon the waste, but the lord is here dealing with them as set ont in the case, and I think the revising barrister was right in thinking that



Bush and Another v. MARTIN. this was some sort of tenure as distinguished from the 11, 12 Nov. 1863. relation of landlord and tenant.

Pleading-Statute of Limitations. Byles and KEATING, JJ., concurred.

Plaintiffs, executors of one J B, sued the defendant as Judgment for the respondent.

clerk to certain local commissioners, for money due for

work and services, &c., rendered by J B as an attorney C. P.

and solicitor to the said commissioners. The defendant's 25 Nov. 1863.

third plea shoued, amongst other things, that the money Breach of PromiseInfant-Practice. claimed accrued due more than six years before action;

but it did not say that there was no cause of action In an action for breach of promise, the defendant within six years of the suit :had never appeared all through the proceedings, and a

Held, not good as a plea of the Statute of Limitaverdict roas recovered in his absence for 5001.

tions. On its appearing that the defendant was an infant :Held, that the judgment must be set aside, though ecutors of John Bush, against the defendant, as clerk

DEMURRER.- Declaration by the plaintiffs, as exwithout costs.

to the commissioners under a Local Act of Parliament This was an action for breach of promise of marriage. for paving, &c., the town of Bradford, in the county of

The writ had been served, but the defendant had Wilts, for money payable for work, &c., of the said not appeared, and did not appear all through the pro- John Bush in his lifetime, as the attorney of the said ceedings, which were taken in accordance with the commissioners, and for fees, &c., for money paid, and provisions of the Common Law Procedure Act, 1852 (15 for money due on accounts stated in the lifetime of & 16 Vict. c. 76). They ended in a writ of inquiry, in the said John Bush, and since his death. which, in the absence of the defendant, the jury gave

Third plea. — That this action was commenced on the plaintiff 500l. damages.

the 22nd of August, 1862, and that the debts and This term, Keane obtained a rule, calling on the moneys in the declaration mentioned accrued due plaintiff to show cause why the judgment should not many years before the said commencement thereof; be set aside, on the ground that the defendant was an that is to say, part thereof, to wit, 51. 198. 8d., accrued infant.

in and prior to the year 1841, and the residue thereof,

to wit, 2601. 138. 9d. in and prior to the year 1850. Against this rule, Raymond showed cause. He

And the defendant further says, that the said comreferred to the preamble and sections 10, 25, 32, 169, missioners had not, at the time of the accruing of the 177 and 183, of the Common Law Procedure Act, said debts, &c. (The plea then went on to show that 1852.

the commissioners had not, nor could they have, any (Byles, J.–Under the old practice you ought to funds raised under the said Act applicable to meet the have given the infant the benefit of his infancy by plaintiff's claim.) appearing for him by guardian.]

Demurrer, and joinder in demurrer.
What possible protection was it to the infant that
appearance was entered for him in the name of John Lopes appeared to support the demurrer.

The Solicitor-General and Bullar appeared for the (ERLE, C.J.-You had first to take out a summons,

defendant. calling on an infant to appoint a guardian, and in default of his doing so, the Court appointed John Doe, POLLOCK, C.B.-I think the plaintiffs are entitled $0 the infant had the protection of the summons.) to our judginent. It was suggested that the plea

This application is not made under the 27th section might be taken as an informal plea of the Statute (enabling the Court to allow a defendant to appear on of Limitations ; but that statute may be defeated, an affidavit of merits), but on the strict ground of the either by the cause of action having accrued within irregularity.

six years, or by a fresh promise, or by part payment. [Byles, J.-But remember there was no cause of To say, therefore, that the cause of action accrued action, and yet you have got judgment.]

more than six years ago, is perfectly compatible with


not so.

six years.

the action being now maintainable. The plea is, pleas, and accepted the 111. 55. in discharge, &c. therefore, insufficient.

The cause came on for trial before Pollock, C.B.,

at the Derby Spring Assizes, 1863. After the BRAMWELL, B.-We gave judgment in the main

case had been proceeded with for a short time, his case yesterday. The plea here, however, shows on the face of it that the claim was upwards of six years matter in dispute between the parties was one of

Jordship stated, that it appeared to him that the old, and it is contended, on the part of the defendant, that it therefore amounts to an informal plea of the account, and that, in his opinion, the case should be

referred to an arbitrator. Statute of Limitations. I think, however, that is

A verdict was then entered for the plaintiff, and an The plea only says that the cause of action accrued upwards of six years ago, but it does not order of reference was drawn up, stating that it was say that there was not a cause of action within the six ordered by the Court, by the consent of the parties to years. It may have accrued twice, and the plea, to be the suit, that a verdiet should be entered for the a good one, should say that it did not accrue within plaintiff, subject to the award of an arbitrator therein

named, to whom the said cause was thereby referred,

with liberty to order and direct for whom and for CHANNELL, B., and Pigott, B., concurred.

what sum the verdict should be finally entered, and Judgment for the plaintiffs. to settle all matters in difference between the parties,

and to order and determine what the said arbitrator

should think fit to be done by either party respecting Ex. } SMITi V. EDGE.

the matter in dispute ; so as the said arbitrator should 12, 16 Nov. 1863.

make and publish his award in writing of and con. Costs of Cause— Reference-County Court Act, cerning the matters in dispute ready to be delivered 13 & 14 Vict. c. 61, s. 11.

to the said parties, or either of them who should

require the same, on or before the last day of Easter To a declaration on the money counts for 211. 10s. 6d. Term then next. the defendant pleaded first as to 51. parcel, &c., nerer in- The order of reference further stated that the said debted. As to 51. 58. 6d. other parcel, a set-off. As to arbitrator should possess the same powers as a Judge residue, payment into Court of 111. 58. The plaintiff at Nisi Prius as to certifying, and that the costs of the joined issive on the two first pleas, and accepted the sum said cause should abide the event of the said award, paid into Court in discharge, &c.

and that the costs of the reference and award should On the case coming on for trial before POLLOCK, be in the discretion of the said arbitrator, with power C.B., his Lordship having stated that he considered to direct and award to, and by whom, and in what the case a proper one for a reference: a verdict was manner, the same should be paid. entered for the plaintif, and an order of reference was The arbitrator by his award ordered that the verdict drawn up, by which the cause and all matters in differ- entered for the plaintiff should be vacated, and found, ence were referred to an arbitrator, with power to direct as to the first issue joined between the parties, that for whom and for what sum the verdict should be the defendant was indebted to the plaintiff in the sum finally entered. It was also declared by the order of 51. 58. 6d. over and above the sum of 111. 58. paid that the arbitralor should possess the same powers of into Court : and as to the second issue, that the plaintiff certifying as a Judge at Nisi Prius, and that the costs was indebted to the defendant in the sum of 21. 98. 4£d.; of the cause should abide the event of the award.

and further ordered that the sum of 21. 9s. 4£d. asThe arbitrator found, on the first issue, that the sessed for the defendant should be allowed out of and defendant owed the plaintiff 51. 5s. 6d., besides the sum deducted from the said sum of 51. 58. 6d. found to be paid into Court ; and, on the second issue, that the due to the plaintiff from the defendant; and that plantiff owed the defendant 21. 9s. 4£d., and ordered the defendant should pay the plaintiff the sum of the defendant to pay the plaintiff the balance of 21. 168. 14d., the balance. He also ordered that the 21. 16s. 1 d.; but did not certify :

plaintiff should pay the defendant his costs of and Held, that the plaintiff had recoveredthe sum of incidental to the reference and award, and that the 21. 168. 14d. within the meaning of the 11th section of plaintiff should bear his own costs of the same.

He the County Court Act, 13 & 14 Vict. c. 61 ; and that,

did not certify for costs. therefore, he was deprived of his costs by that statute. On the 4th of November, Michaelmas Term, 1863, In this action the declaration was on the money

Streeten obtained a rule to show cause why the plaincounts for 211, 10s, 6d.

tiff should not recover his costs of his action, and wby The defendant pleaded, 1st. As to 51. parcel, &c., the Master should not tax the same. never indebted. 2nd. As to 51. 58. other parcel, a setoff. As to the residue, payment into Court of 11l. 58.

12 Nov, 1863. The plaintiff joined issue on the first and second

Pitzjames Stephen showed cause against the rule.

The plaintiff is deprived of his costs by section 11 of * Bush v. Martin, 3 N. R 90.

the County Court Act, 13 & 14 Vict, c. 61. The

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plaintiff here has recovered a sum less than 201. The [POLLOCK, C.B.- It is much to be regretted that authorities clearly show that he is not entitled to costs these words were inserted into the order of reference. in such a case as this ;

When I referred the case I did so merely because it Cooper v. Pegg, 16 C. B. 264,

seemed to me a fit one for arbitration, and I had no is in point. In that case the cause was referred ; a idea of giving the plaintiff his costs.] verdict being entered for the plaintiff for 5001., with Had there been no verdict, we should have been 40s. costs, the costs of the suit to abide the event. clearly entitled to costs. As it is, we are still entitled The arbitrator found in favour of the plaintiff, but to them ; because the parties have agreed the costs ordered the damages to be reduced to one farthing. shall follow the event of the award. The Court held that the plaintiff had recovered by [POLLOCK, C.B.—They have not agreed so. This verdict the sum of one farthing, and that therefore was a compulsory reference.] the case came within the 2nd section of Lord Den It was a reference by consent; because a Judge at man's Act, 3 & 1 Vict. c. 24, s. 2, and that the Nisi Prius has no power to compel a reference under plaintiff was deprived of costs by that statute ; and such circumstances as the present; and, therefore, we they ordered that part of the postea which stated that look to the reference to see the agreement as to costs. the plaintiff was to have 40s. costs to be struck out. It is to be observed that the reference is not merely of The other side will probably rely on

the cause, but of all matters in dispute. Wigens v. Cooke, 6 C. B. (N. S.) 784,

(POLLOCK, C.B.-Is any other matter disposed of by but in that case the record was withdrawn, and the the award ?] cause therefore referred without a verdict being

Not in terms. entered : the costs of the cause were there to abide the [Pollock, C.B.-It is merely the ordinary form erent. The arbitrator found for the plaintiff on one issue, usually inserted into such orders of reference.) and gave him a farthing damages. It was held that In the cases which have been cited of reference before therefore the plaintiff had not recovered by verdict of verdict the sum was, nevertheless, “recovered” in a jury, and that the case did not come within Lord Court. Here, assuming that we have “recovered," Denman's Act: and that as the costs of the cause the statute merely says that we shall not have judgwere to abide the event, and the event was in favour ment for costs. We do not want a judgment; but of the plaintiff, he was entitled to his costs. The merely an order of the Court to enforce the agreement ground of the decision there, was-that the plaintiff in the award. had not "recovered” the sum by the verdict of a

Cur. adv. vult. jury, and that therefore the clause in the award 16 Nov. 1863. governed the question of costs.

POLLOCK, C.B.- I am of opinion that this rule Jones v. Jones, 7 C. B. (N. s.) 832,

should be discharged. The case turned upon an action differs from Cooper v. Pegg and the present case in the brought in one of the Superior Courts, in which less

There the cause was referred before than 201. was recovered. The parties were living Terdict.

within twenty miles of each other, and the action [BRAMWELL, B., referred to

clearly came within the jurisdiction of the County Kelscy v. Stubbles, 32 L. J. Ex. 6; 1 N. R. 104.] Courts. The facts were, that, on the case coming In that case the cause was referred before issue joined. before me on the Midland Circuit, I pointed out that Here, a verdict has been entered for the plaintiff. He the question was only one of account, and suggested has, in fact, “recovered” a sum less than 201. The that it should be considered by some one who could County Court Act, therefore, applies.

properly decide on such matters.

The cause was

then referred, and the arbitrator has decided upon Streeten, in support of the rule. The plaintiff is it. (His Lordship read the award.] The arbitrator entitled to his costs, as the order of reference states has merely found the facts, and has not given them that the costs are to abide the event, and the arbi- their legal effect by disposing of them as matter trator has, on the whole, found in favour of the of plea. Substantially, however, he has decided plaintiff

, as the defendant has to pay him 21. 168. 1ļa. the issues, and there were no other matters in differ(BRANWELL, B.—The finding of the arbitrator is ence than those in the cause, and on which he irregular. He should have found on the issues sepa

has decided. The officer of the Court made a rately. The set-off is, properly speaking, found for blunder in not striking out of the order of reference the plaintiff, as he was not indebted to the defendant the clause as to other matters in difference; but in an amount equal to that part of the claim to which Mr. Streeten failed to show that there were any the defendant had pleaded set-off. Practically we other questions decided between the parties than may take it that the issues are found in favour of the those in the original case. plaintiff, with a verdict for 21. 163. 11d.]

Ultimately, the plaintiff recovered by the verdict of The plaintiff is entitled to his costs under the words a jury, qualified by an award under 201., and he is of the order of reference,

not, in my opinion, entitled to costs. Prean v. Sargent, 8 L. T. 467.

Several cases were referred to in support of the

same manner.

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