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1898.

KITCHEN

V.

JOHNSON.

The heading of the fourth column is now "Descrip

tion of Qualifying Property." It is true that formerly
. .
it used to be "Street, Lane, or other like Place
where the Property is situate" (a). It is submitted, how-
ever, that that makes no difference, and that the words.
"qualification" and "description of the qualification
in sub-section 13 cover the words of the heading of the
fourth column. Otherwise confusion would result, for if
it were held possible, the device already alluded to
would, no doubt, be adopted for the very purpose of
avoiding inquiry and objection. Bendle v. Watson (b),
which will be relied upon by the other side, is a very
different case. There the description of the qualifica-
tion was, when it was first entered on the register, quite
correct; but it became an insufficient description subse-
quently, owing to the re-numbering of the street. The
premises forming the qualification, however, were always
the same.

[LORD RUSSELL OF KILLOWEN, L.C.J. Do you say that, whenever there is a case to which a declaration for the purpose of amendment is applicable under section 24, in the absence of such a declaration, the power of amendment is taken away except as provided in sub-section 13?]

Yes. That, it is submitted, is the result of the authorities. The absolute discretion to amend given by section 28, sub-section 2 is cut down by sub-section 13 and section 24, so that, where it is a question of qualification, no amendment can be made without a declaration. Any amendment which does not touch that may be

(a) See 6 Vict. cap. 18, Sched. A.

(b) 1 Hopw. & Colt. 591; L. R. 7 C. P. 163.

made, but the description of the qualification can not be altered by substituting the description of another qualification. Bendle v. Watson (a) shows the distinction which has been supposed to exist. No new qualification may be supplied, but an inaccuracy in the real qualification may be corrected. (He cited also Soutter v. Roderick, Le Blonde's Case (b), and Hurcum v. Hilleary (c).)

Appleton for the respondent. First, sub-section 13 of section 28 of the Parliamentary and Municipal Registration Act, 1878 (d), does not apply to this case at all. The terms "qualification" and "description of the qualification" in that sub-section mean only the legal qualification such as "freehold," "dwellinghouse," &c. That this is the meaning is shown by the exception at the end of the sub-section "for the purpose of more clearly and accurately defining the same.” You do not define houses or premises, but you do define a legal qualification by the statement of it. It is said that the words "description of the qualification" apply to the fourth column of the entry, which is headed Description of Qualifying Property"; but it is submitted that does not satisfy the word "define." Moreover, the heading of the fourth column was formerly "Street, Lane, &c. where the Property is situate," and the present heading has the same meaning. The only words in section 24 of the Act of 1878 (d) which refer to the fourth column are, "the name or situation of whose qualifying property. An alteration in the fourth

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column is therefore not touched by sub-section 13.

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1898.

KITCHEN

V.

JOHNSON.

1898.

KITCHEN

V.

JOHNSON.

This view is confirmed by the case of Bendle v. Watson (a). The grounds of that decision are given in the judgment of Keating, J. (b). “The difficulty which chiefly struck me was that such an alteration as this might come within the words of the proviso to the section which prevents evidence being given of any other qualification than that described, and any change of the description of the qualification as it appears on the list, except for the purpose of more clearly and accurately defining the same. I think, however, that this proviso is sufficiently satisfied by interpreting it to refer to the description of the nature of the qualification, and to mean that there shall be no change of that description such as to make the qualification on the register different from that intended to be inserted.” In the report of the same case in Hopwood and Coltman's Reports (a), the judgment of Willes, J., is based upon the same grounds.

In Foskett v. Kaufman (c), on the other hand, and all the cases in which the alteration or amendment sought has been disallowed, it would have had the effect of changing the nature of the qualification as stated in the third column. That it is admitted cannot be done without a declaration.

The present case is not within those decisions. It is not to be distinguished from Bendle v. Watson (a).

Secondly, if this amendment is a change of the description of the qualification within sub-section 13, then it comes within the exception as being for the purpose merely of more clearly and accurately defining the same. If it is clearly shown that a man is claiming in respect of property about his occupation of which

(a) 1 Hopw. & Colt. 591; L. R. 7 C. P. 163.

(b) L. R. 7 C. P. at p. 169.

(c) Colt. 466; 16 Q. B. D. 279.

there is no doubt, and that although he has misdescribed its situation he is to be found, and communications will reach him at the place he intended to describe, the correction of the mistake is within the exception of sub-section 13 and the power of amendment in subsection 2 of section 28. Here it was proved that by following the address, 31, Monk Street, the claimant would be found at 33, Monk Street, and that the mistake was bonâ fide. The amendment was therefore possible.

The case of Bendle v. Watson (a) has been followed in three Irish cases decided upon similar provisions in the Irish Act of Parliament: Short v. Daly (b); Hanbridge v. Beveridge (Donelly's Case) (c); Holland v. Chambers (McClafferty and Toland's Case) (d); all of which support the contention on behalf of the respondent.

Graham, in reply. The contention of the respondent amounts to this-that any alteration of the description of the property may be allowed if it is said to be a blunder. That is not the meaning of the statute nor the result of the cases. Where amendments have been allowed it has been when the description was insufficient of the property intended to be described, not where a description has been given sufficient to describe a qualification, but some other qualification was intended.

LORD RUSSELL OF KILLOWEN, L.C.J. In this case it is impossible to say that the matter is free from doubt, but upon the best judgment I can form I have

(a) 1 Hopw. & Colt. 591; L. R. 7 C. P. 163.

(b) Lawson's Notes (1885-93) 310. (c) Ibid. 303. (d) Ibid. (1894) 40.

1898.

KITCHEN

V.

JOHNSON.

1898. KITCHEN

V.

JOHNSON.

come to the conclusion that the Revising Barrister was within his powers in making the amendment.

66

The question arises in relation to a notice of claim and a list of claimants. A form of claim contains these four headings, viz. :—“ Name; Place of Abode ; Nature of Qualification; Description of Qualifying Property"; and the claim in this case appeared in the list of claimants filled up thus :

Name.

Place of Abode.

Nature
of
Qualification.

Description of
Qualifying
Property.

DANN, ERNEST. 31, Monk Street. Houses in suc- 202, Gordon Road

cession.

and 31, Monk Street.

It is agreed by both the learned counsel that the fourth column was formerly entitled "Street, Lane, or other like place . . . . and Number of House (if any) where the Property is situate, &c." (a). Now the facts are that the claimant had occupied during the qualifying period as tenant No. 202, Gordon Road, and No. 33, Monk Street, and was entitled to a vote in respect of that successive occupation. By a mistake of the agent's clerk in making out the description of the houses or qualifying property in respect of which Dann, the claimant, was claiming, he put No. 31 instead of No. 33, Monk Street, these being adjoining houses; and this is not a wholly immaterial circumstance as affecting the discretion of the Revising Barrister, for one knows how common a practice it is to put all the odd numbers on one side of a street and the even numbers on the other. Therefore we have it that these were adjoining houses, and the case finds that com

(a) See 6 Vict. cap. 18, Sched. A.

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