A piece of land, called a riding, divided into about eighty allotments of an acre each, had been held for centuries by the bailiff und bailiff burgesses of the town of C, who from time immemorial, whenever a vacancy had occurred, had invested an inhabitant of such town with the possession of one of such allotments, to hold the same for his life and the life of his wife so long as he and she should reside in such town, subject and chargeable with waste, and also subject to the rules of the said bailiff and bailiff burgesses. Each holder of such allotment manured and mowed the same, and after the crop of grass had been taken off by him the bailiff and bailiff burgesses were accustomed to grant the after-grass for five weeks to such other inhabitant as they thought fit, and at the expiration of such five weeks the whole riding was thrown open to all the inhabitants of the town to depasture sheep and cattle there

until the 15th of December, when it was closed. Each holder of such allotment was separately rated to and paid the poor-rates, and the annual value of such allotment was between 31. and 51.:-Held, that each holder had such an equitable estate of freehold in the land, with the possession of which he was so invested, as would confer a county vote; and that he was in the actual and bona fide occupation of such land within the meaning of 2 Will. 4. c. 45. s. 18, notwithstanding the said rights of after-grass and pasture granted to the other inhabitants.

Appeal from the decision of the Revising Barrister appointed to revise the lists of voters for the Western Division of the County of Gloucester.

The appellant, John Trenfield, claimed to have his named placed on the list for the parish of Old Sodbury, but was objected to.

The CASE stated that the following facts were established by the evidence: The bailiff and bailiff burgesses of the town or borough of Chipping Sodbury, is a body of very ancient origin, and existed, as appears by the records of the town and court rolls of the manor of Chipping Sodbury, long previously to the year 1681, but no charter of incorporation is at present known to

have existed. The said bailiff and bailiff burgesses are appointed as hereinafter mentioned.

In the year 1681 a charter was granted by Charles the Second. A translation of this charter is given in Sir Robert Atkyns's History of Gloucestershire, and is referred to as a part of this case.

Shortly after the granting of this charter the inhabitants became anxious for its repeal, and according to a statement in Rudder's History of Gloucestershire, published in 1779, which is also referred to as a part of this case, the charter was annulled by proclamation at the request of the inhabitants themselves in 1668. Whether the charter of Charles the Second was formally annulled or not, it fell into complete disuse, and from the year 1668 or 1669 down to the present time the borough or town has been under the government of the bailiff and bailiff burgesses as prior to the lastmentioned charter.

The bailiff and bailiff burgesses, amongst other property, are entitled to a piece of inclosed pasture land, situate in the adjoin ing parish of Old Sodbury called "The Mead Riding," and containing by admeasurement ninety acres. The origin of the title of the bailiff and bailiff burgesses to this piece of land is not shewn, but they have held it for centuries; and in Rudder's History of Gloucestershire, this and other property is referred to as derived from ancient grants made in the reign of King John and King Henry the Second. The piece of land called the Mead Riding is divided by metes and bounds and trenches into eighty-one allotments, none less than an acre in extent, and many of them from an acre to an acre and a half, but all are called "acres." The bailiff and bailiff burgesses have from time immemorial given these acres to the inhabitants in the following manner:-On an acre falling vacant, a meeting of the bailiff and bailiff burgesses is convened, and held at the usual place of meeting, in the Town Hall of the town of Chipping Sodbury, and such meeting decides by majority of votes to whom, being an inhabitant of the town or borough of Chipping Sodbury, such vacant acre shall be given; after such decision has been made, one or more of the bailiff burgesses and the inhabitant to whom the acre has

been given enter upon the acre in question, and a sod or turf is then cut from the acre by the hayward of the riding (an officer appointed in court leet of the manor) and a twig stuck in it, and thereupon one of the bailiff burgesses, acting on behalf of the bailiff and bailiff burgesses, gives possession of the acre by delivering the twig and turf to the donee, at the same time reading the following formula, which is called the investiture:

"The piece of land on which we are now standing (commonly called an acre) has lately fallen into the possession of the bailiff and bailiff burgesses of Chipping Sodbury, and in pursuance of their direction

invest you therewith by delivering to you this twig and turf: To hold the said piece of land for your life and the life of any woman that may be your lawful wife and survive you, so long as you and your wife shall reside in this town, and subject and chargeable with all manner of waste, particularly waste in felling or cutting any tree or trees whatsoever growing or that may hereafter grow on the said piece of land. And also subject to all the present rules and orders of the said bailiff and bailiff burgesses respecting the grounds called 'The Ridings,' as well as those that may be from time to time relating thereto."

This completes the ceremony, and a minute is usually recorded in the minutebook of the bailiff and bailiff burgesses to the effect that the acre which fell in on the death of A. was given to B.

The acre thus obtained is held by the donee according to the terms of the investiture, and is drained, manured and mown by the holder, who at spring and fall pays to the bailiff in respect thereof, for what are called dues, the sum of 28., which goes to the bailiff in aid of his expenses of office, which are considerable.

With regard to the Mead Riding aforesaid, the following custom has prevailed from time immemorial. After the crop of grass has been mown and taken off by the several parties who for the time being are the holders of acres as aforesaid, the bailiff and bailiff burgesses convene a meeting of themselves and grant out the after-grass in what are called stems to such of the inhabitants of Chipping Sodbury as they think fit, to the number of eighty-two, this

being the number of acres of which the riding is considered to consist. Each such stem confers the right to depasture a cow in the riding for five weeks from the 10th of September. At the expiration of such five weeks, the riding is thrown open by the bailiff and bailiff burgesses, according to custom, to all the inhabitants of Chipping Sodbury, to depasture sheep and cattle therein until the 15th of December, when it is closed; but manure may be taken out on the acres after the grass is cut and carried until the 1st of August, and also from the 5th of January to the 14th of February in each year.

Each holder of an acre is separately rated to and pays the poor and church rates of Old Sodbury, and is also separately assessed to the income-tax for that parish in respect of such acre, and no instance has been known of a person once elected as the holder of an acre being dispossessed or ceasing to hold such acre, except upon his death, or his ceasing to reside in the town of Chipping Sodbury. In no case is the clear annual value of an acre in the said Mead Riding less than 37., but in no case does it amount to 5l.

The said John Trenfield, being an inhabitant of the said town of Chipping Sodbury, was in the year 1847 duly elected by the said bailiff and bailiff burgesses to an acre in the said Mead Riding, and was thereupon duly invested with the possession of the same acre, according to the form of investiture in manner aforesaid. The said John Trenfield has ever since been and now is such an inhabitant as aforesaid, and in the enjoyment and possession of such acre. The clear annual value of the acre of the said John Trenfield is more than 37. but less than 51.

The said John Trenfield duly claimed to have his name placed and retained on the list of voters for the parish of Old Sodbury, in the western division of the county of Gloucester, in respect of the acre so held by him as aforesaid, but his vote was objected to on the ground that his interest in the land in respect of which he claimed to vote was not such an estate of freehold as would confer a county vote.

The Revising Barrister decided that the said claimant had not, under the circumstances stated, such an estate of freehold NEW SERIES, 38.-C.P.

in the land in question as would confer a vote for the county.

Pickering (J. G. Edwards with him), for the appellant.-The appellant had an equitable estate of freehold in the land in question which entitled him to a vote for the county. After the centuries which have elapsed, it may now be presumed that the bailiff and bailiff burgesses hold the land which is divided into these allotments in trust for the several persons who are from time to time chosen out of the inhabitants and admitted into possession of one of these allotments. In this respect such persons are as much entitled to the vote as the bedesmen in Simpson v. Wilkinson (1) and Roberts v. Percival (2), the parish clerk in Roberts v. Drewitt (3), or the owners of benchers' chambers in Lincoln's Inn-2 Peckwell, 109, Rogers on Elections, 10th edit. 38. The estate the appellant took in the land to which he was admitted was an estate for life, for it was for so long as he should reside in the town, and therefore was for an indefinite and uncertain period, and its duration was not liable to be determined at the will of the grantors-Preston Estates, 405, Co. Lit. 42 a, the authorities collected in Mr. Serjeant Manning's note to Davis v. Waddington (4) and Beeson v. Burton (5). The question then is, whether there is anything in the existence of the rights of depasture which it appears are given to the other inhabitants which so interferes with the freehold estate which the appellant takes in the land in question as to prevent its being in his "actual and bona fide occupation" within the meaning of section 18. of the 2 Will. 4. c. 45. The Representation of the People Act, 1867 (30 & 31 Vict. c. 102. s. 5), has only altered this 18th section by reducing the yearly value of the qualifying property required to take the case out of that section from 10l. to 5l., and therefore where it is not of that reduced value, the person who has only a freehold for life must still, no doubt, be

(1) 7 Man. & G. 50; s. c. 14 Law J. Rep. (N.S.) C.P. 49.

(2) 18 Com. B. Rep. N.S. 36; s. c. 34 Law J. Rep. (N.s.) C.P. 84.

(3) Ibid. 48.

(4) 7 Man. & G. 46; s. c. 14 Law J. Rep. (N.S.) C.P. 45.

(5) 12 Com. B. Rep. 647; s. c. 22 Law J. Rep. (N.S.) C.P. 33.

2 C

"in the actual and bona fide occupation" of the land. It is submitted, however, that the appellant in this case was in such occupation. The rights of depasture which the other inhabitants have do not oust the appellant from his actual occupation of the soil. A grant of the herbage does not pass the soil-Co. Lit. 4 b; and here it is expressly found that the appellant has always been in the possession of the allotment, and has been rated to and paid the poor-rates.

Joshua Williams, for the respondent.The appellant has not an estate in the land at all, either legal or equitable. He has only a mere franchise, and in this respect the present case differs from those of Simpson v. Wilkinson (1) and Roberts v. Percival (2), where the bedesmen were in the actual and exclusive occupation of particular rooms. Here the appellant can do nothing with this land but mow it, and in fact what he has is a right to mow it. His interest is like that of the freemen of Bedford in Nash v. Coombs (6), who were entitled so long as they were resident there to turn out one head of stock annually upon certain commonable land. The main objection to the appellant's right to the vote is, that he is not in the actual occupation of the land within the meaning of section 18. of 2 Will. 4. c. 45. during the whole of the year. In Rogers on Elections, 10th edit., p. 5, it is stated, with respect to the occupation required by this 18th section, that it "is peculiar from the introduction of the word actual, which does not occur in the section conferring the borough franchise." "The question, what is actual occupation? has been supposed to be illustrated by the decisions under one of the Pauper Settlement Acts (1 Will. 4. c. 18), where the same words are used, and in which it was held that no constructive occupation by a tenant or lodger, nothing, in short, but the person's own exclusive occupation of the whole premises, satisfied the provisions of the act," citing The King v. St. Nicholas, Rochester (7), The King v. St. Nicholas, Colchester (8), The King v.

(6) 37 Law J. Rep. (N.S.) Chanc. 600; s. c. Law Rep. 6 Eq. 51.

(7) 5 B. & Ad. 219; s. c. 5 Law J. Rep. (N.S.) M.C. 45.

(8) 2 Ad. & E. 599; s. c. 4 Law J. Rep. (N.S.) M.C. 46.

Berkswell (9) and The King v. St. Giles'sin-the-Fields (10). The case of The King v. the Trustees for the Burgesses of Tewkesbury (11) shews that the persons who have the right to after-math are the occupiers of the land. What interest, then, had the appellant? The freehold was in the bailiff and bailiff burgesses, and though the appellant might acquire perhaps an equitable estate for life, it could be only in the particular mode of enjoying the land, and not an estate in the land itself. He would only have a right to manure and to mow, but he could not stack the grass when cut, and for portions of the year others would have the right to use the land. The case of Suckerman v. Warner (12) shews that the mere right to mow would not make the person who has such right an occupier. Pickering replied.

KEATING, J.-In this case the question has been faintly argued whether the claimant took an estate of freehold for life. Mr. Williams did not lay much stress upon this point, and I have no doubt that the intention was, that the claimant should take possession of the land for life, subject to the rules of the bailiff and bailiff burgesses, some of which rules involved the rights of other persons to go on the land to depasture with cows and sheep, and also to take the after-grass. He was admitted into the possession of the land by the bailiff and bailiff burgesses, into whose possession it had fallen by this form of investiture.[The learned Judge here read the words of the investiture, as stated in the case.]— And so far as the possession is concerned, the case distinctly finds that the claimant, "the said John Treufield, has ever since been and now is such inhabitant as aforesaid, and in the enjoyment and possession of such acre." It seems, therefore, to be clear that the claimant took an equitable estate of freehold; but the main point which has been raised is, whether, within the meaning of section 18. of the Reform Act, he can be considered to have been

(9) 6 Ad. & E. 282; s. c. 6 Law J. Rep. (N.S.) M.C. 35.

(10) 4 Ad. & E. 495; s. c. 5 Law J. Rep. (N.S.) M.C. 51.

(11) 13 East, 155. (12) 2 Bulst. 248.

in the actual and bona fide occupation of the land, and it has been argued that he was not in such occupation because he was not in the exclusive occupation in consequence of the rights of other persons to a right of common of pasture on the land. I have doubted whether the occupation was of such a nature as the statute contemplated; but, on consideration, I think that we may reasonably hold that the claimant had the bona fide occupation of the land within the meaning of the 18th section. It is found by the case that he was rated to the poor-rate as the occupier, and there really was no other person who could have been so rated, and under all the circumstances I have come to the conclusion that the claimant was in the occupation within the meaning of the 18th section. I doubt whether the Revising Barrister intended to raise this question, but inasmuch as it has been argued, I thought we ought to give our opinion upon it.

MONTAGUE SMITH, J.-I am of the same opinion. I think that Mr. Pickering put the title upon the right ground, namely, that the legal estate was in the bailiff and bailiff burgesses, and that they had invested the claimant with an equitable freehold for life. I share the doubt of my Brother Keating, whether anything more than that question was intended to be raised for our opinion, because the case finds that the claimant was objected to on the ground that his interest in the land in respect of which he claimed to vote was not such an estate of freehold as would confer a county vote, and that the Revising Barrister decided that the claimant had not, under the circumstances stated, such an estate of freehold in the land as would confer a vote for the county. It has been scarcely argued by Mr. Williams that the claimant had not such an equitable estate of freehold as would confer a vote, provided the restriction required by the statute where the annual value was less than 57. had been complied with; but he argued that such restriction had not been complied with, as the claimant was not, it was said, in the actual and bona fide occupation. I think, however, that he was. It was plainly intended by the investiture to put him in the actual possession of the land. It is

stated in the case that the claimant was so put in possession, and he was clearly in the actual and beneficial occupation of the land during part of the year. It seems, however, that there was a right of pasture over the land during the rest of the year, but that was no more than a stinted right of common over the meadow, and I think that the putting the cattle on the land under that right would not prevent the person who was in the possession of the land from having such possession. There is nothing that I can see which would prevent such person from being on the land during the time such right of pasture was exercised, and doing anything with the land which was not inconsistent with such right. The form of the investiture is not unimportant. It treats the person who is thereby invested as the person who is to be considered as the possessor of the land, and liable for waste. I therefore think that this point, though not expressly raised, ought, if raised, to be decided in favour of the claimant.

A petition was presented against the return of C. as member for the borough of T, on the ground of bribery, &c., and such petition also claimed the seat for J, an unsuccessful candidate. At the trial J., being called as witness, was cross-examined by the respondent's counsel as to acts of bribery, &c., and the Judge was addressed on the point; the Judge decided that C. was improperly returned, and J. entitled to the seat. Twenty-one days after the return had been altered in pursuance of this decision, a petition was presented against the return of J:-Held, that the decision of the Judge as to the status of J. was final; that this would have been so even