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tenements, situate, standing and being in Clayport-street, in Alnwick aforesaid, late in the occupation of William Gibb and Henry Fairbairn” (describing the messuages by bounds. ] To have, hold, receive, take, and enjoy the said annual sum or yearly rentcharge of 41. 48. unto and by them, the said Robert Dodds the younger and Adam Dodds, their heirs and assigns for ever, in equal shares as tenants in common, and to be paid on the 25th day of January in every year free and clear from all deductions whatsoever, the first payment thereof to begin and be made on the 25th day of January now instant. In witness,” &c.
All the other deeds were to the same effect, and were to be taken mutatis mutandis as if stated as part of this case. It was proved that each of the grantors named in the several deeds was seised in demesne as of fee of and in the lands and tenements in those deeds respectively described, and out of which respectively the annual sums, or rentcharges therein respectively mentioned, were therein respectively expressed to be issuing; that the same annual sums had been received by the several grantees, and that the annual value of the lands and tenements out of which the same annual sums or rentcharges respectively were to issue, was sufficient to answer and pay the same annual sums or rentcharges respectively.
It was contended, on the part of the objector, that there was no power of distress, and that therefore there was no sufficient qualification. On the other hand, the claimants contended that these deeds were quite sufficient without any power of distress being contained in them to confer a qualification to vote for a county; that the statute, 4 Geo. 2. c. 28. s. 5, gives the grantees a power of distress.
The Revising Barrister decided that without a power of distress the grants were respectively insufficient to confer a qualification to vote, and that there was no power of distress; and he therefore disallowed the claims of the said several persons so objected to, and erased their names from the said list of voters.
If this Court should be of opinion that the deeds, in the absence of an express power of distress, were respectively sufficient to confer a qualification to vote, the names of the several persons therein mentioned, and who were those who had been so objected to, were to be restored, and the register to be altered accordingly.
Joshua Williams, for the appellant.—The words of the statute, 4 Geo. 2. c. 28. s. 5, are very plain; it gives to every person the like remedy by distress in case of rent-seck as in case of rent reserved upon lease. It was admitted by the Court in Bradbury v. Wright (Dougl. 627) that the distress might have been supported for rent-seck if the case had been brought within this statute. So, in Saward v. Anstey (2 Bing. 521), Best, C.J. said that, “ that statute has now given a distress to the owners of rents-seck,” and in Buttery v. Robinson (3 Ibid. 392) the distress made by the annuitant was expressly supported by the Court, though the will creating the annuity gave no power to distrain. It is stated in Blackstone's Commentaries, vol. 2, p. 43, and vol. 3, p. 6, that the statute 4 Geo. 2. c. 28. has, in effect, abolished the distinction between rent service, rentcharge and rent-seck, and that persons now may have the like remedy for all these rents. Stephen's Commentaries, 5th edit. vol. 3, p. 356, contains a passage to the like effect, with this remark by the author : So that now we may lay it down as an universal principle that a distress may be taken for any kind of rent in arrear the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. Probably the case of West v. Robson (3 Com. B. Rep. N.S. 422; s. c. 27 Law J. Rep. (N.S.) C.P. 262) has given rise to the present decision of the Revising Barrister. There the claimants, who were fellows of a college, claimed to vote as the owners of a rentcharge of 101. a year issuing out of certain lands in different counties, and the Court said that it was not a rentcharge, there being no power of distress. In that case there was merely a trust to pay the yearly sum to each of the fellows of the college, and the decision, moreover, turned on another point, because the whole profits of the lands in the county for which the votes were claimed were insufficient to pay 101. a year to each of the claimants.
Manisty, for the respondent.—There is no case exactly in point. The question really is, whether, looking to the deed and the language used in it, the claimant had a freehold tenement to the annual value of 408. within the meaning of the statute 8 Hen. 6. c. 7. It is submitted that what is claimed here is not a freehold tenement, but only a rent-seck-Co. Litt., 143, b., where the difference is pointed out between a rentcharge and a rent-seck. It was not a tenement in the nature of land, or which could have been enforced on the land.
[Erle, C.J.-There is nothing in the passage in Co. Litt. which shews that it is not a freehold tenement because it is a rent-seck. BYLES, J.-- What were the remedies at common law to recover rent-seck ?)
It is not clear that there would be any means of enforcing it against the land, and probably the only remedy would be a personal one by action on the covenant.
[WILLES, J. referred to Webb. v. Jiggs (4 M. & S. 113), where it was held that debt did not lie at common law for arrears of an annuity for life devised payable out of lands, so long as the estate of freehold continued, because of the higher remedy by writ of assise.)
But the remedy by assise is now gone; all real actions (except writ of right of dower, and quare impedit) having been abolished by the 3 & 4 Will. 4. c. 27. s. 36. Therefore, if the statute of 4 Geo. 2. c. 28. had never been passed, the deed in the present case would have created only a dry rent-seck, not enforceable by entry on the land, and the only remedy for the recovery of it would have been by personal action on the covenant, express or implied. The appellant relies on this statute of 4 Geo. 2. c. 28, which he says has made the rent a rentcharge. It is not denied that the rent is within that statute, and therefore recoverable by distress; but that is a collateral remedy given by that statute, and does not make the interest which the party claiming here took under the deed, that of a freehold tenement, and the question therefore still remains whether the deed created such a tenement and conferred the qualification claimed for the voter. It is submitted that it did not do so, and that it is not because that statute gave a right to distrain that therefore this was a tenement.
Williams was not heard in reply.
ERLE, C.J.-I am of opinion that the decision of the Revising Barrister should be reversed. The claim is a qualification of a freehold tenement, namely, a rent of 40s. charged on freehold land, and in the grant of such rent there is no mention of a remedy to the grantee for enforcing payment; and, therefore, before the statute of the 4 Geo. 2. c. 28. I take it it would have been a rent-seck, and at the time of the passing the statute 8 Hen. 6. c. 7. it would have been a rent-seck of 40s. per annum. I have not been convinced by Mr. Manisty that for enforcing the payment of a rent-seck charged on land, there would be no remedy, for upon looking at the passage in Co. Litt. 160, a, sec. 236, to which my Brother Willes has drawn my attention, it seems to be clear that there was a remedy by real action for a rent-seck at the time when the statute 8 Hen. 6. c. 7. created the qualification. Then, the remedy by real action having been taken away by statute, and no other remedy provided, it seems to me that it would have been incumbent to have found a remedy for the enforcement of the right either in Chancery or in the Queen's Bench; but one need not now resort to such ultimate reinedy, because the statute 4 Geo. 2. c. 28. has provided a remedy by distress for rent-seck. That statute applies to the rent in question, which is, therefore, capable of being enforced by distress on the land, and, consequently, there is every requisite to make it a valid qualification.
WILLES, J.-I am of the same opinion. I do not agree with Mr. Williams that this case was not reserved for our opinion after much consideration, for I believe it to be that sort of question which one would not answer without consideration, seeing that it raises some nice points, especially that connected with the statute 3 & 4 Will. 4. c. 27, which abolished real actions; still a personal action will not lie against the terre-tenant, and I have no doubt that these cases were in the mind of the Revising Barrister, and that he felt this difficulty, that whereas the remedy by real action had been done away with, there was a doubt whether there was a remedy ex necessitate rei. This knot has, however, been cut by the statute of the 4 Geo. 2. c. 28, which gives a remedy out of the land. I own, therefore, that the opinion of the Revising Barrister cannot be sustained, and that his decision must be reversed.
BYLES, J.-I am of the same opinion. I think it is clear that before the abolition of real actions the rent in this case would have been a freehold tenement, and would have been payable out of the land. The difficulty which has been raised is, that apart from the statute of 4 Geo. 2. c. 28. there was no remedy by distress. At common law the remedy was only by real action; whether any remedy could be obtained in equity, or whether, as my Lord has suggested, the Court of Queen's Bench might possibly interfere by mandamus, it is not necessary to say, for the statute 4 Geo. 2. c. 28. applies (and mandamus would only be applicable if there were no other remedy), and then we have here a freehold tenement issuing out of the land.
KEATING, J.-I also am of the same opinion. This was a freehold tenement within the meaning of the statute 8 Hen. 6. c. 7, and though real actions have been abolished by the 3 & 4 Will. 4. c. 27, it remains still a freehold tenement, and the effect of that statute in doing away with real remedies has no application to such tenements by reason of the statute 4 Geo. 2. c. 28, which gave the remedy by distress. I, therefore, think that the Revising Barrister was wrong, and that his decision should be reversed.
(IN THE COMMON PLEAS. ]
NORRISH, appellant, v. HARRIS, respondent.
Nov. 20, 1865, Jan. 18, 31, 1866.
35 L. J. C.P. 101; 1 H. & R. 328; H. & P. 305; L. R. 1 C.P. 155; 13 L. T. 762;
14 W. R. 479; 12 Jur. N.S. 627.
Parliament-Borough Vote-“ Building”-2 & 3 Will. 4. c. 45. 8. 27.
ELECTION LAW.-As far as the purpose for which a structure may be used in order to constitute a building,” within the statute 2 Will. 4. C. 45. 8. 27, there is no distinction between agricultural and commercial industry, and a building really used for warehousing manure, kept there for the purposes of the land, is sufficient to qualify, as far as its use is concerned.
When the amount required for a borough qualification, under section 27. of the Reform Act, is made up partly by building and partly by land, there is nothing to define the proportion which the building must bear to the value of the land; and it is therefore sufficient to give such qualification, 80 far as the value of the building is concerned, if the building bona fide add to the land's real annual value to let, though in a small degree.
Norrish, appellant, v. HARRIS, respondent.
NORRISH This was an appeal from the decision of the Revising Barrister for the borough of Totnes.
The facts of the case were as follows: The voter occupied a piece of land, at the rent of more than 101. per annum, with a stone building roofed upon it; the building had four walls and a door, which was kept locked. The voter kept in the building guano and other manures, which he used for the purposes of the land. The building was full. It was objected that the building was not a building within the meaning of the 27th section of the Reform Act, 2 Will. 4. c. 45.
The Revising Barrister held that it was not a building within the meaning of the said section, and expunged the voter's name.
If the Court was of opinion that the decision of the Revising Barrister was wrong, the name of the said John Norrish was to be restored to the list of voters for the parish of Totnes, in the said borough of Totnes.
Mellish (Kingdon with him), for the appellant. The building in this case is not like a shed erected by an electioneering agent for the purpose of creating a vote, and to which the landlord had never assented, as was the case in Powell v. Boraston (18 Com. B. Rep. N.S. 175; s. C. 34 Law J. Rep. (N.s.) C.P. 73). The building here is a substantial one, adapted for the agricultural purposes of storing guano, for which it was erected, and it ought fairly to be considered as a building within the meaning of section 27. of the Reform Act (2 Will. 4. c. 45). It would not be consistent with the decision of this Court in Whitmore v. the Town Clerk of Wenlock (5 Man. & G. 9; s. C. 1 Lutw. 10; 13 Law J. Rep. (N.s.) C.P. 55) if a distinction were drawn between a building used for agricultural and a building used for commercial purposes. The purpose for which the building is used is immaterial. It was capable of being used for commercial purposes, and was very much like a warehouse. The case of Powell v. Farmer (18 Com. B. Rep. N.S. 168; 8. c. 34 Law J. Rep. (N.S.) C.P. 71) is precisely in point, and the only distinction between that case and the present one is, that there the claimant was a market-gardener, and the building was used by him for storing potatoes and other things connected with his business of a market-gardener; whereas, here, he is a farmer, and the building is used by him for warehousing guano and manure for the purposes of his farm.
W. H. Cook, for the respondent.—This structure was not a “ building within the meaning of the act, and the decision of the Revising Barrister was right. “ The legislature intended," says Erle, C.J., in delivering the judgment of the Court in Powell v. Boraston (18 Com. B. Rep. N.S. 175; s. c. 34 Law J. Rep. (N.s.) C.P. 73), “ that ' building' should give the primary qualification, and that ‘land’ should be & seco
econdary resort, if the building was not worth 101. per annum.
But land would become the primary qualification if a shed of no value added to land of the required value was held to qualify." Here the building is only an adjunct to the land, which is here the primary qualification. Moreover, the legislature intended by " other building thing similar to those previously described in the 27th section, and consequently such as would be used for commercial, and not merely agricultural purposes. Mellish replied.
Cur. adv. vult.
ERLE, C.J., now (Jan. 18) delivered the following judgment.—According to the statement of this case, the building now in question was not deficient in respect of form and durability, and it was used for the purpose of keeping guano. It was suggested on the argument that the Revising Barrister decided against the qualification, because the guano was to be applied to the claimant's own farm, and the building was used solely for an agricultural purpose, and that, in thus deciding, he intended to follow an opinion of this Court, supposed to have been expressed in the case of Powell v. Boraston (18 Com. B. Rep. N.S. 175; s. c. 34 Law J. Rep. (N.s.) C.P. 73). In that case we held that a few boards nailed to some posts, for the sole purpose of pretending to the Revising Barrister that it was a shed, did not qualify; and we dissented from the opinion expressed in Lutuych, p. 581 : “That any building, however slight and unsubstantial, would be sufficient to qualify, provided it had a roof, and was capable of holding any articles.” We drew attention to the words of the statute to which we and the Revising Barristers have to give effect, and under which we are bound as much to prevent lawful votes from being neutralized by fictitious pretences, as to support the franchise where the legislature has given it; and we came to the conclusion “that the pretence of a shed was not a building within the residentiary class, or in the class connected with commercial industry to which the statute related.” In this language we did not mean to contradistinguish commercial from agricultural industry, so as to exclude agriculture. On the contrary, in applying this statute, we consider that an agriculturist carries on at the same time what may be termed a commercial business, using the word commercial in its widest extension, and taking all products of industry having value to be subjects of commerce, and that a building really used or intended to be really used for the purpose of keeping such products may qualify, whether they are intended for home consumption or for exchange : see Whitmore v. the Town Clerk of Wenlock (5 Man. & G. 9; s. c. 1 Lutw. 10; 13 Law J. Rep. (N.s.) C.P. 55). Then as the building now in question appears to have been really used for warehousing guano, we are of opinion that it was sufficient to qualify, as far as its use was concerned, and the decision to the contrary is reversed.
With respect to the other cases, from the borough of Totnes, we are unable, without further information, to come to a decision. We therefore send them back to the Revising Barrister, and would thank him to answer the following question at his earliest convenience : “Is the land with the building of more real value to let than it would be without the building?" In answering this question, all notions of value for a vote are to be excluded. The descriptions of the buildings are not the same in each of these cases; and the Revising Barrister may adapt his answer accordingly, if he thinks there is any substantial difference between them in respect of value.
The other cases were accordingly sent back to the Revising Barrister, who afterwards returned them amended by inserting in each case the value of the building, and as so amended they were as follows:
Gillham, appellant, v. Harris, respondent. The facts of this case were as follows: The voter occupied during the electoral year a piece of land at the rent of more than 101. per annum, on which he grazed a cow and other cattle, with a stone building roofed upon it, which he used for the purpose of milking his cow in, and for keeping hay. The building had three sides, was open in front, and had a loft over it, which was not used except for fowls to roost in. The voter was a dairyman. The building was worth about 108. a year to the tenant. It was objected that the building was not a “ building ” within the meaning of the 27th section of the Reform Act (2 Will. 4. c. 45). The Revising Barrister held that it was not a building within the meaning of the said section, and expunged the voter's
(1) Watson v. Cotton ; see that case also reported 5 Com. B. Rep. 55; 8. c. 17 Law J. Rep. (N.8.) C.P. 58.