OCCUPA TION. gradations from tenant in fee simple down to tenant at NATURE OF will; occupation, on the other hand, describes the exercise of that right by actual user. It would therefore seem to be a confusion of things in themselves entirely distinct, to consider that the continuance of a tenancy, which amounts to a right to occupy only, necessarily implies the exercise of that right in fact, or is the same thing with it (r). If a man puts furniture or goods into a house, or places in it his servants or clerks, or in any other way makes a bona fide use of it, he occupies it. But if he let it, and his lessee take possession, both his right to occupy and his occupation in fact are put an end to by the occupation of the lessee. Where 46 persons, with the view of obtaining When illegal. votes in a borough, hired a farm and buildings, and carried on the business of the farm by means of a manager, but omitted to register the association as required by the Companies Act, 1862, s. 4, it was held that as their only occupation was a constructive one by their manager, and they could not prove that without at the same time showing the illegality of their association, they were not entitled to the franchise. Harris v. Amery, (1865), L. R., 1 C. P. 148; H. & P. (r) The distinction between mere tenancy or holding, and occupation has been frequently pointed out in cases under the Tenement Acts, 59 G. 3, c. 50, and 6 G. 4, c. 57. R. v. North Collingham, (1823), 1 B. & C. 578; R. v. Great Bolton, (1828), 8 B. & C. 71; R. v. Tonbridge, (1826), 6 B. & C. 90; R. v. Stow Burdolph, (1830), 1 B. & Ad. 219. In R. v. Ditcheat, (1829), 9 B. & C. 183, Littledale, J., says, "There is a material distinction between a holding and an occupation. A person may hold, though he does not occupy. A tenant of a freehold is one that holds of another: he does not necessarily occupy. So with regard to the word "possession: a man in popular language, and for many purposes in legal presumption, is said to be in possession of property which is occupied by tenants who pay him rent for it; but such constructive possession does not, except where a man or his family live in a house, and lets part of it to lodgers, fulfil the meaning of the word occupation. In the old cases occupancy" is said to arise out of "the actual possession and manurance of the land." Vin. Abr., "Occupancy," H. OCCUPA TION. NATURE OF 294; 35 L. J., C. P. 89. But it would seem from the observations of the judges in the above case, that if actual occupation can be proved, without showing its illegality, the legality or otherwise of such occupation, e. g. for immoral purposes, could not be questioned at the revision court. And even where the occupation is under a sub-tenancy created contrary to statute, it is sufficient to give the franchise. Glenn v. Brennan, 29 I. L. T. R. 79; L. (1894), 10. What not sufficient. Taunton, (1838), Falc. & Fitz. 297, (Morgan's case).The voter, being a yearly tenant from Midsummer to Midsummer, gave notice to quit at Lady-day, and a few days before Midsummer tendered the keys to his landlady, who refused to accept them because the notice to quit was not sufficient. However, unknown to her, the keys were left at her house. A fortnight after Midsummer the landlady's husband wrote "To be let" on the door, and she took legal proceedings for the recovery of the rent up to Christmas, but did not take possession of the house till after the election in July. The voter had removed at Midsummer, and the house was shut up at and after the election. The vote was held bad. And see Id. 273, (Prentice's case). Blackburn, (1842), B. & Aust. 339, (Clark's case).The voter left his house in May, 1839, and went to reside elsewhere, leaving his wife and children there till Midsummer, 1840, when they followed him. They, however, left some of the furniture in the house, apparently to satisfy arrears of rent. The key was given up in November, 1840, and soon afterwards the landlord put in a distress for rent due. Held, that the voter had not a sufficient occupation in July, 1840. Harwich, 1st case, (1851), 1 P. R. & D. 307, (Attwood's case).-The voter claimed for a furnished house. He did not live there, but his gardener and wife lived in it and took care of it for two years; but they had gone to live in the lodge for some time, and no one lived at the house. The voter had not slept there for two years. The gardener still looked after the house (the voter paying for the coals), but received no wages. NATURE OF Vote bad. OCCUPA- Personal residence by a man or his family, though By goods, it may be the ordinary, is not the only mode in which &c. a house can be occupied. In other words, it is not necessary to show a continued residence of any part of the family to constitute a sufficient occupation. See Ipswich, (1838), Falc. & Fitz. 271, (Pisey's case). In cases of residence, indeed, where it is required to be inferred. that a man, though personally absent, still continues to "reside," it is important to show that the absence is not permanent; but in cases of occupation it is immaterial, supposing actual occupation be otherwise shown, whether his personal absence is permanent or only temporary (s). And it is clear that a house may be occupied by other means than dwelling in it, or inhabiting it personally. Daniel v. Coulsting, post, p. 181. lodger; If the owner or tenant of a house inhabit any part May take of it, he is in law the occupier of the whole house, although the remaining parts may be let out to lodgers. and inmates. Phillips' case, (1835), Alcock, R. C. R. 20; following Duigenan's case, (1837), Id. 114; Fludier v. Lombe, (1736), Ca. t. Hardw. 307. See also R. v. S. Michael's, Cambridge, (1860), 3 E. & E. 383; 30 L. J., M. C. 74; and Morton v. Palmer, (1881), 51 L. J., Q. B. 7, C. A. In R. v. Ditcheat, (1829), 9 B. & C. 185, Littledale, J., said, "It is not necessary, in order to make a man an occupier, that he should actually sleep or take his meals in a house, or that his family should actually dwell in (s) In R. v. S. Mary Kalendar, (1839), 9 A. & E. 626; 8 L. J. (N. S.), M. C. 54: upon the Tenement Acts, Lord Denman said he considered the language of Littledale, J. (in R. v. Ditcheat, (1829), 9 B. & C. 183), to have been pressed to an unreasonable extent, and says, with regard to it, "It cannot have been meant that no occupation could take place without personal residence: a man might occupy by bales of goods"; and Coleridge, J., says, "Suppose he had gone away without any animus revertendi, but had left a person on the premises, would not that have been an occupation? and if so, may not he occupy in the same manner by his goods?" And see R. v. Great Bentley, (1830), 10 B. & C. 520. NATURE OF the whole house; but the law considers him for this OCCUPA TION. or admit licensee. Market stalls. By lodgers. purpose an occupier if he hold the whole, and by himself or family occupy a part." And this is so whether he lets a lodger the exclusive use of a furnished bedroom with joint use of sitting room; Brewer v. M'Gowan, (1869), L. R., 5 C. P. 239; 1 Hop. & C. 275; 39 L. J., C. P. 30; or an unfurnished room, with exclusive possession, with joint use of the vestibule and a key of the outer door, as in the case of chambers; Smith v. Lancaster, (1869), L. R., 5 C. P. 246; 1 Hop. & C. 287; 39 L. J., C. P. 33; or merely permits another person, as licensee, to reside with him in the house. Campbell v. Chambers, (Gallagher's case), (1886), 20 Ir. L. R. 239; L. 81; Bolton v. M'Grorey, (1893), L. 353. Such letting or permissive user does not make his tenant or licensee a joint occupier with him within the meaning of R. P. Act, 1867, s. 3; vide S. CC. So where a father bequeathed his son a dwellinghouse, with liberty to his widow to reside there, and she so resided, the son was held to be sole occupier. Torish v. Love, (1894), 2 I. R. 372; L. 85. Secus, where there was a bequest to the widow of a specifie room in the house. Torish v. Brown, (1894), 2 I. R. 373, n.; L. 86. Where the freehold owner of a house died intestate, and his eldest son and widow continued to reside there, the widow's right to dower did not make her joint occupier with the son; Riddall v. Macguire, (1890), L. 89. The occupiers of stands in a market at annual payments exceeding 107. are entitled, the precise spaces occupied by the stands being known, although not marked or enclosed. Hall v. Metcalfe, (1892) 1 Q. B. 208; F. & S. 227; 61 L. J., Q. B. D. 53. The nature of the occupation by a lodger, as distinguished from a householder or tenant, will be found discussed at pp. 95 et seq., ante. Although the legislature has not defined a lodger, it has to some extent defined an occupier, and one method of determining in a given case whether a man is or is not a lodger is to consider whether he could vote as an X Tenant notice to quit. Tenancy determined. Tenant held on. Held both he & sub tenant trespassers. I although tenancy afterwards revived, sub tenant, lost vote as Inhal Jan VOTERS FOR CITIES AND BOROUGHS. householder! 17 Break of qualification. Red? OCCUPA- occupier, because then he would not be a lodger, for NATURE OF Where A. conveyed premises of which he was owner Continu- suspen holding over. A temporary suspension of occupation will in general Temporary invalidate the vote. Thus, it has been held in the Irish sion of. C. A. that where the tenancy of A. is determined by a Tenant notice to quit, and A. is served with, or has notice of a summons for possession, under 23 & 24 V. c. 154, ss. 85, Concannonv 86, A. thereupon becomes a trespasser, and the break of Holland Reg occupation as tenant, thus arising, cannot, for the pur- C. P. ap. poses of the franchise, be cured by an agreement between A. and his landlord for a new tenancy as from the expira- p.r. Sub agreed '96. 20; L., (1894), 9. Where the tenant A. has been duly Eviction. passers ment. v. Riddall, (1888), 23 I. L. T. R. 4; L. 70. And even Attorn- M' Shane & Holland. Notice to quit on 14th July remained in possession till 28th Held tenant on Jufferance till July 20. good. |