CLUTTERBUCK, Appellant; TAYLOR, Respondent.



C. A. 1896.

Feb. 5, 6, 27. A policeman,

T a Court held on the 18th September, 1895, for November 11. the revision of the lists of parliamentary electors and burgesses for the parish of St. Nicholas in the city of Gloucester, the name of the appellant, George Clutterbuck, appeared on Division 2 of the list of by virtue of persons entitled to vote in respect of the occupation property within the said parish, as qualified by the occupation of a dwelling-house (service) in Bearland the said parish.



Notice of objection was duly served upon the appellant by the respondent, Taylor, on the ground "that the appellant had not been the inhabitant occupier of a dwelling-house twelve months to July 15th in this year."

his service,

occupied a

cubicle in the

police station
at Gloucester,
for which he
paid rent.
His cubicle
was one of

several in the same room, separated from each from the

other and

passage down the room by partitions, which did not

reach the

ceiling, and the gaslight, the air, and

The appellant was a constable, and during the whole of the qualifying period had the exclusive occupation of a cubicle in the police station at Gloucester. This cubicle with others was contained in a room in the of the room police station. It was about 8 feet by 7 feet, and were shared was partitioned off on three sides by a wooden partition

about 7 feet high, the wall of the room forming the fourth side. It was entered by a door opening into a

the warmth

in common

by all the

cubicles. He

took his meals

in the com

mon mess

room, and used the

common washing room of the station. The appropriation and the mode of user of the cubicles were at all times subject to the control of the superintendent, but the occupants were allowed keys of their respective cubicles, and the claimant had had the exclusive use of his cubicle, without interference or restriction, in fact, for the whole of the qualifying period. Held (by Lord Esher, M.R., and Lopes, L.J.; Rigby, L.J., dissenting), that such cubicle was not "a part of a house separately occupied as a dwelling," within the meaning of 41 & 42 Vict. cap. 26, sect. 5, so as to entitle the policeman to the franchise. Barnett v. Hickmott (Fox & Smith, 412), approved.



passage which passed down the room, and of this door CLUTTERBUCK the appellant had the key, and was entitled to close and lock it at pleasure. There is a space of 2 or 3 feet intervening between the top of the partition and the ceiling of the room. The cubicles derive daylight from the outer windows of the room, and one of the windows is wholly enclosed in each cubicle. The passage, the ventilation, and the atmosphere of the dormitory are common to all the cubicles, and a gaslight is shared in common by all the cubicles in the room. The bed and bedding was supplied by the county, but the appellant was at liberty to add any furniture of his own, and had in fact supplied a chair. He was charged and paid rent for the cubicle. The appellant used the common washing-room of the station, though he was at liberty to supply his own washing furniture if he pleased. He took his meals in the common mess room. The respondent contended that the cubicle was not separately occupied by the appellant as a dwelling.

On behalf of the appellant it was contended

1. That the notice of objection was not sufficiently specific to raise this question; and

2. That the cubicle was in fact separately occupied as a dwelling.

The Revising Barrister held that the notice of objection was sufficient, that the case was not distinguishable from Barnett v. Hickmott (a), and that, as matter of law, he was bound to hold that the cubicle was not separately occupied as a dwelling. He therefore erased the name of the appellant from the list.

The names of six other persons, contained in the schedule to the case afterwards stated by the Revising

(a) Fox & Smith, 412; (1895) 1 Q. B. 691.

Barrister, appeared in the same list, and were objected




to on the same ground. The notice of objection and CLUTTERBUCK the facts relating to each case were identical with those above stated. The Revising Barrister erased the names of all the said persons.

Notice of appeal in each case was duly given, and the appeals were ordered to be consolidated.

If the notice of objection was insufficient, or if upon the facts stated the Revising Barrister could properly hold that the cubicle was separately occupied by the appellant as a dwelling, then the name of the appellant and of the six persons mentioned in the said schedule were to be restored to the list.

Counsel for appellant and respondent agreeing that this case could not be distinguished from the case of Barnett v. Hickmott (a), the Court held that it could not go back on the decision given in that case, and accordingly this appeal was dismissed, and leave to appeal to the Court of Appeal granted.

The appellant appealed. The appeal was heard on February 5th, 6th, 27th.

W. Graham, for the appellant.

This appeal raises the question whether the decision of the Queen's Bench Division, in the case of Barnett v. Hickmott (a), is right. It was agreed in the Court below that the facts in this case cannot be distinguished from those upon which that judgment was founded.

Before the Representation of the People Act, 1867 (b),

(a) Fox & Smith, 412; (1895) 1 Q. B. 691.

(b) 30 31 Vict. cap. 102.


Feb. 5, 6. 27.



structural severance.


1896. it was settled that there could not be a "separate CLUTTERBUCK dwelling" for franchise purposes unless there was That Act left the matter as it stood as regards severance, but required separate rating. The question now turns on the wording of section 5 of the Parliamentary and Municipal Registration Act, 1878 (a). "Dwelling-house shall include any part of a house where that part is separately occupied as a dwelling." Separate rating is no longer necessary, and it is important to compare the definition of "dwellinghouse" in this section with the corresponding definition in section 61 of the Act of 1867 (b), which was, dwelling-house shall include any part of a house occupied as a separate dwelling." The Court of Common Pleas was equally divided on the meaning of section 61 of the Act of 1867 (b) in two cases which came before them-Thompson v. Ward (c), Ellis v. Burch (d). It is submitted that the altered language of the definition in section 5 of the Act of 1878 (a) was adopted to meet the view of those judges of the Court of Common Pleas who held in those cases that any portion of a house was a separate dwelling so long as it was separately occupied in such a manner as to practically give a man a separate dwelling. The Court below, in Barnett v. Hickmott (e), held the cubicles in that case to be not separately occupied as a dwelling, because of the facts of common warming, common lighting, and common ventilation; but it is now usual to provide the large buildings, which have become so general, with a system of lighting and warming in Then there is also in the section the express


(a) 41 & 42 Vict. cap. 26.
(b) 30 & 31 Vict. cap. 102.
(e) 1 Hopw. & Colt. 537; L. R.
6 C. P. 327.

(d) Ibid.

(e) Fox & Smith, 412; (1895) 1 Q. B. 691.




proviso that, "where an occupier is entitled to the sole 1896. and exclusive use of any part of a house, that part shall CLUTTERBUCK not be deemed to be occupied otherwise than separately by reason only that the occupier is entitled to the joint use of some other part." That section, therefore, entirely does away with the necessity of structural severance, with the idea that there must be no joint use of any part, and with separate rating. The only thing now required is separate occupation. These cubicles are separate in that sense, even if they are not complete rooms. The only difference between them and a single room is that, for the purpose of health, the partitions are not carried up to the ceiling, and for the purpose of economy they are warmed in common. No one can enter them but their respective owners. Bradley v. Baylis (a), the landlord lived on the premises and had control. The occupiers there were held to be only lodgers. In Kirby v. Biffen (b), the landlord did not live on the premises, and the claimant was held entitled to his vote as an occupier. This was followed by Stribling v. Halse (c), which, though with some dissent, was in fact acquiesced in by the Court of Appeal in Ireland, in Hasson v. Chambers (d). In Barnett v. Hickmott (e), the judgment of the Court below was put on the ground of the common enjoyment of light, warmth, and ventilation; that is not the criterion, the question depends on separate occupation. If the cubicle can be used only by the occupant, and is occupied by him for the purpose of a dwelling, he is entitled to the franchise. It may be that a division by curtains would not do, that would not give a sufficiently exclusive

(a) Colt. 163; 8 Q. B. D. 195. (b) Ibid.

(c) Colt. 409; 16 Q. B. D. 246.

(d) 18 L. R. Ir. 68.

(e) Fox & Smith, 412; (1895) 1 Q. B. 691.

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