one-twelfth part or share in the said twenty-six acres of land, and that the same was eleemosynary; and that, even if his interest therein were freehold, yet the same was not of sufficient yearly value to entitle him to be registered, as the calling of "parish clerk" is not an office within the meaning of the exception in the 18th section of the 2 Will. IV. c. 45; and, consequently, that, to entitle him to be registered on the said list, his one-twelfth part or share in the said twenty-six acres of land must be of the annual value of 10l.: and, further, that the appointment of parish clerk must be by deed.

8. The Revising Barrister decided, that, on these facts, the said Richard Drewitt did take a freehold interest in his onetwelfth part or share in the said land, and that "parish clerk " was an "office" within the said 18th section: and accordingly he retained his name in the said list of voters, and amended the third column of the said list to "Freehold land, in right of office," and the fourth column to "Parish clerk of Marston. Bushy land."

9. The questions for the opinion of the Court were, first,whether the said Richard Drewitt had a freehold interest in his said one-twelfth part or share of the said land, secondly, whether the calling of "parish clerk" was an office within the meaning of the exception in the said 18th section of the said Act, -and thirdly, whether a person can be appointed to such office otherwise than by deed.

10. If the Court should be of opinion that the respondent took a freehold interest in respect of his said share, and that "parish clerk" is an office within the meaning of the said 18th section, and also that the appointment thereto need not be by deed, the list was to stand without amendment. But, if the Court should be of a contrary opinion on either of these points, the said list was to be amended by expunging therefrom the name of the said respondent.

Hannen, for the appellant:

The question in this case arises upon the 18th section of the Reform Act, which enacts that no person shall be entitled to vote * * in respect of any freehold lands or tenements * * except such person shall be in the actual and bonâ fide occupation of such lands and tenements, or except the same shall have come to such person by marriage, marriage settlement, devise, or promotion to any benefice or to any office, or except the same shall be of the clear yearly value of not less than 107. above all rents and charges payable out of or in respect of the same," &c. It cannot be contended that the appointment to the office of parish

ROBERTS

v.

DREWITT.

[52]

clerk need be by deed: and, as to its being an appointment to an "office," the subject underwent consideration in Bushell v. Eastes (1). There, A. was in 1826 appointed parish clerk of St. James, Dover; and by licence under the seal of the Archbishop of Canterbury, dated in 1832, he was confirmed in his office," together with all and singular the fees, salaries, and profits either by law or ancient custom belonging to the same." Part of the emoluments attached to the office consisted of the clerk's share of an antient due payable to the clerk and sexton upon the opening of every grave in the churchyard of the parish; and this exceeded 40s. a year. The parish clerk had not himself to perform any of the work of or incident to the opening of the graves, this being done by the sexton. The Revising Barrister held that the antient fee was in the nature of a remuneration for services rendered in conducting the funeral rites, and not a payment or emolument issuing out of or charged upon any land, and therefore that the parish clerk was not entitled to be registered. The COURT held that his decision was right. The real question here is, whether that person has a freehold interest in land within the statute.

(BYLES, J.: We cannot enter into a question of title.)

If the Revising Barrister meant to find that Mr. Drewitt had title to the land, there is nothing to argue.

(BYLES, J.: He finds that he is entitled to it so long as he holds the office of parish clerk, that his predecessors in the office have always enjoyed it, and that nobody has ever interfered with them.)

Rew, for the respondent, was not called upon.
ERLE, Ch. J.:

We must presume that what has been done has been rightly done. If it was impossible for this person to have a freehold in the land, no doubt Mr. Hannen's argument must prevail. But there is nothing in the case to warrant us in coming to that conclusion.

The rest of the COURT concurring,

Decision affirmed, with costs.

(1) 132 R. R. 493 (11 C. B. N. S. 106).

GEORGE BAKER v. THOMAS LOCKE.

(18 C. B. N. S. 52-64; S. C. 34 L. J. C. P. 49; 10 Jur. N. S. 64; 11 L. T. N. S. 567; 13 W. R. 258.)

1. Quære, whether a poor rate, one of the persons necessarily constituting the majority in the making of which was an assistant overseer, is valid?

2. In the parish of T. there were two churchwardens and four overseers, and an assistant overseer who was appointed "to assist the overseers of the poor of the said parish in the performance of all the duties incident to the office of overseer of the said parish, except the collection of rates." A rate was made by the two churchwardens, one overseer, and the assistant overseer, and was allowed by two justices, and duly published, and not appealed against :

Held, that, the rate being apparently good upon the face of it, the non-payment of it disqualified a party from being placed upon the borough list of voters (1).

1. Ar the Court held to revise the list of voters for the borough of Taunton, Thomas Locke duly objected to the name of George Baker and those of nine other persons. The names of the parties objected to appeared in the list as follows:

Christian Name and Surname of each Voter.

1864.

Nov. 19.

Borough of
Taunton.

[ 52 ]

2. The facts in the case of George Baker proved before the Revising Barrister were as follows: George Baker occupied as tenant premises within the said borough, in the parish of Taunton St. James, of sufficient value and for a sufficient time to entitle him to a vote for the said borough under the 2 Will. IV. c. 45, s. 27. Subject to the following question as to his non-payment of rates:

3. During the period of his occupation required by law to entitle him to a vote, a poor rate for the said parish was made and signed by an overseer of the said parish, and also by the two churchwardens, and by the assistant overseer thereof. The rate was allowed and confirmed at Taunton by two magistrates

Government Act, 1894.

(1) As to the making of the poor ss. 5 (1) and 19 (5) of the Local rate and appointment of assistant overseers in rural parishes, see now

R.R. VOL. OXLIV.

25

[53]

for the county of Somerset, who in the usual form appended their joint signatures to a certificate of allowance immediately following in the rate book the signatures of the overseer, assistant overseer, and churchwardens; but, in point of fact, the signatures of the two magistrates to the allowance were obtained on the same day in Taunton, and separately.

4. The rate was duly published the day after it was allowed: and in the said rate George Baker was rated in respect of the premises he occupied; and, on its being demanded, he did not pay and has not paid the said rate. The rate was not appealed against, and the time for appeal has now expired; and the rate has been generally paid.

5. There are four overseers appointed for the said parish. The assistant overseer is appointed under the 59 Geo. III. c. 12, s. 7, and his appointment in its material parts is as follows:

"POOR LAW. ASSISTANT OVERSEER. APPOINTMENT. "59 Geo. III. c. 12, s. 7; 7 & 8 Vict. c. 101, s. 61. "County of Somerset. Whereas, the inhabitants of the parish of Taunton St. James, in the said county of *Somerset, in vestry assembled in the said parish on the 8th day of April last, elected and nominated Walker Chorley Brannan, of Taunton St. James aforesaid, accomptant, to be assistant overseer of the poor of the said parish of Taunton St. James, and did determine that the duties to be by him executed and performed should be, to assist the overseers of the poor of the said parish in the performance of all the duties incident to the office of overseers of the said parish (except the collection of rates), and that his salary for the execution of the said office should be 101. yearly, to be paid quarterly. Now, we do appoint the said Walker Chorley Brannan to be assistant overseer of the poor of the said parish of Taunton St. James, to execute and perform the duties above referred to, and at the salary fixed as aforesaid. "Given under the hands and seals," &c.

6. The assistant overseer was also duly appointed collector of rates by the board of guardians.

7. It was contended on behalf of George Baker, that the said rate was void, on the ground that it was not signed by a majority of the parish officers, and that consequently its non-payment by George Baker did not invalidate his right to be retained on the list of voters for the said borough.

8. The Revising Barrister was of opinion that the rate had been signed by a majority of the parish officers; but that, at all events, having been signed as above described, allowed, and published, it was while unappealed against a rate which must

have been paid by George Baker to entitle him to a vote under the 27th section of the Reform Act; and he accordingly expunged his name from the list of voters.

9. He also expunged from the said list the other nine names above written; and, as the facts in each of those cases were the same as those above stated in reference *to George Baker, and raised the same point of law, he declared that they should be all consolidated with the principal case.

10. If his decision in the case of George Baker was right, the list as revised by him was to remain unaltered; but, if it was wrong, then the name of George Baker and the other nine names above written were to be reinstated in the list.

Hannen (with whom was Underdown), for the appellant: A voter is not disqualified by non-payment of a void rate, which, it is submitted, the rate in question is, it not having been made by "the greater number" of the churchwardens and overseers of the poor of the parish, as required by the 43 Eliz. c. 2, s. 3. It appears, that, in the parish of Taunton St. James, there are two churchwardens and four overseers, and that there is also an assistant overseer; and that the rate in question was signed by the two churchwardens and one overseer, and by the assistant overseer. It is submitted that the assistant overseer has no authority to make a rate. The statute authorizing the appointment of an assistant overseer is the 59 Geo. III. c. 12, s. 7, which provides, amongst other things, that, "every person to be so appointed assistant overseer shall be and he is hereby authorized and impowered to execute all such of the duties of the office of overseer of the poor as shall in the warrant for his appointment be expressed, in like manner and as fully to all intents and purposes as the same may be executed by any ordinary overseer of the poor." That obviously means that he shall act as the deputy or servant of the overseers; and that is borne out by the 61st section of the 7 & 8 Vict. c. 101, which enacts that "every assistant overseer appointed or hereafter to be appointed in pursuance of the said Act of 59 Geo. III. c. 12, shall, subject to the rules of the Poor Law Commissioners, obey, in all matters relating to the duties of overseer, all directions of the majority of the overseers of the parish for which he acts." How is it consistent with this enactment that his vote should override the judgment of three of the four overseers.

(BYLES, J.: He relies upon the express words of the 59 Geo. III. c. 12, "in like manner and as fully to all intents and purposes as the same may be executed by any ordinary. overseer of the poor.")

BAKER

v.

LOCKE.

[ *55]

[ *56 ]