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1896.

CLUTTERBUCK

V.

TAYLOR.

to ask for the key and go in to the cubicle, and make other restrictions. But as a matter of fact he never did. Therefore, in my opinion, if this man occupied at all, and there is no doubt of that, he separately occupied

part of a house.

"as a dwelling."

Then we come to the important words Those words are of great importance; but I do not find anything in the Act which says that they must mean with all the same powers as people ordinarily enjoy who have a legal tenure of their houses. Some light is thrown on the nature of the occupation required, by reference to the earlier part of the section, viz., "any part of a house where that part is separately occupied for the purpose of any trade, business or profession." Suppose an artist, clergyman, or trader takes a room in a house or a cubicle in a building in order to use it for his profession or trade, and he is the only person who uses it, the Act says that part shall be deemed to be a house. It would be extraordinary, if that is so, that the same reasoning should not apply to the other part of the section. We do not get it in that case that the professional man or trader must occupy the part just as other professional men or traders occupy houses of their own. Though he may have bargained to submit to restrictions, he must be taken to separately occupy the room for the purposes of his business or profession. Suppose a painter having a studio in which he was forbidden to receive visitors. It is true he could not paint portraits, but he would none the less use the studio for the purpose of his profession. It would be an occupation not for all the purposes of his profession, but such as involves the purpose of his profession.

When we come to the words "separately occupy as a dwelling," this consideration gives us great assistance.

If the claimant does not occupy as a dwelling, in what 1896. other way does he occupy? I take the antithesis in the CLUTTERBUCK section to be occupation as a dwelling as distinguished

from occupation for trade or business.

An occupier of a dwelling-house is not bound to show his title for the purpose of the franchise. He might not have a good title, he might not be a tenant, he might be a trespasser. The only question is, Was he there? Did he occupy for the qualifying period? I concede the claimant may have had less rights than the ordinary occupiers of a dwelling-house. But the question is, Was the occupation of this cubicle, such as it was, an occupation as a dwelling? It appears to me these cubicles were the dwellings of the persons who occupied them from day to day, month by month, and year by year. They have slept in them night by night. How is this other than as a dwelling? The user, so far as it went, was user as a dwelling. However large a power of interference the superior officer had, that is not the test. It is a mere question of fact: Did the claimant separately occupy this cubicle as part of a house, and did he occupy it as a dwelling-not in the ordinary meaning, but having such a user as could not be described in any other way? I am of opinion that the claimant did so occupy. As, however, the Master of the Rolls and Lopes, L.J., have given their decision the other way, the appeal must be dismissed.

V.

TAYLOR.

Appeal dismissed.

Solicitors-For the Appellant, Richard White, for
F. Treasure, Gloucester.

For the Respondent, C. T. Courtney Lewis,

for W. Langley-Smith, Gloucester.

CASES

ARGUED AND DETERMINED

IN THE

QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE,

AND ON APPEAL THEREFROM,
UNDER STATS. 6 & 7 VICT. c. 18,

AND

41 & 42 VICT. c. 26,

AND THE ACTS AMENDING THE SAME

DURING THE YEAR 1896,

IN THE

FIFTY-NINTH AND SIXTIETH YEARS OF
QUEEN VICTORIA.

IN

THE QUEEN v. SODEN.

1896.

March 24.

C. A. May 4.

this case a rule nisi was granted calling upon the Revising Barrister for the city of Leeds to show cause why an appeal should not be entertained and a case stated by him, or why a writ of mandamus should not issue commanding him to hear and determine the claims of John Kelly, junior, and James O'Brien to public notice duly given announced

The Revising

Barrister by

that he would hold his Court for revising the lists of the East Division of Leeds on the 16th and 17th September, and that the lists would be closed at the evening sitting on the 17th. At that sitting, having satisfied himself by inquiry in open Court that there were no more persons present who desired to be heard, he declared the lists closed and adjourned the Court to the 18th September for the formal work of completing the lists by reading out and initialling the names inserted or expunged, and appending his signature in compliance with 6 Vict. cap. 18, sect. 41, and 28 & 29 Vict. cap. 36, sect. 15. As the names were being so read out on the 18th September, claimants, who had not appeared nor desired to be heard at any of the advertised sittings, applied to the Revising Barrister to then hear and determine their claims. He refused to hear them, and expunged their names. Held, that the lists were duly closed on the 17th September, and that the claimants were not entitled to be heard. Quære, whether a mandamus will lie to a Revising Barrister who is functus officio and has returned his

nomination.

VOL. I.

H

1896.

have their names inserted in the lists of parliamentary

THE QUEEN and municipal electors for the said city.

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In accordance with the usual practice a notice was published by the Town Clerk on the 4th September, 1895, appointing the days and hours on which the Revising Barrister would sit to revise the lists of parliamentary and municipal electors for the several divisions of the city of Leeds. The notice stated that the Court would sit to revise the lists for the East Leeds Division on Monday, the 16th September, at 6.15 p.m., and Tuesday, the 17th September, at 10.30 a.m. and 6.15 p.m., and that the lists would close at the evening sitting on the 17th September. At the evening sitting on the 17th September, the Revising Barrister having heard the claims of all who were present, with the exception of two or three cases, which were adjourned till the following day, at the special request of the agent, for the production of further evidence, and being informed by the agents, and having also satisfied himself by inquiries in open Court, that there were no more claimants or persons objected to present, thereupon declared that the lists for East Leeds were closed. On the following day, the 18th September, the Revising Barrister, having been informed that the adjourned cases had been abandoned, proceeded with the formal business of the sitting, which consisted of striking out and initialling the names of those who had not appeared or otherwise established their claims, and the calling out the list showing which claims had been allowed and which had been struck out. On the names of the claimants Kelly and O'Brien being called, they applied to be heard in support of their claims. It was not suggested that they had appeared at any of the pre

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