1994 WOLFE CLERK OF COUNTY save copies of the consecration and induction deeds, and a copy of the forms of declarations and oaths usually made or taken before institution. No evidence or proof of right to charge for sittings or of an COUNCIL. assignment of pew-rents save as above was given. REEVE v. The revising barrister found as a fact that there had been no THE SAME. assignment of pew-rents whatsoever to the said new church or vicarage or benefice, and was of opinion that neither the churchwardens nor the claimant had any legal right to reserve for money to be paid to the claimant any seats in the church, and that the price could not be recovered in an action; he also found that under the circumstances the churchwardens were the claimant's agents, and that the claimant and the churchwardens were acting in good faith, and that the letting was not unreasonable. Similar letting of seats outside the law was practised in several churches of new parishes in South London to the knowledge of the bishop and other ecclesiastical authorities, though in the greater number of new parish churches in South London there was no letting of seats. The parishioners did not contest or dispute the letting of seats by the claimant. The letting was likely to continue in the near future, and an income of over 10l. would continue to the claimant from that source. The claimant occupied as owner the freehold land and the church building, and also occupied as tenant or owner a house in which he lived in the said parish (all within a parliamentary borough) of such value as would confer on him the right of voting at parliamentary and other elections for the borough in respect of the 107. tenement qualification. The claimant's case was based solely on the pew-rents. It was contended by the objector that the pew-rents were unlawful, as there was no statutory or other proper authority or sanction for charging for the pews or sittings; that the income was in its nature too fluctuating and uncertain, and that under the circumstances there was no income or receipt, or no income or receipt sufficient in law, from land within the parish such as to entitle the claimant to a county parliamentary vote in respect thereof. In the alternative it was contended that 1904 WOLFE V. CLERK OF the claimant was in the occupation of land alone, or land and building, of sufficient value to confer on him the borough vote, and that under s. 24 of the Reform Act, 1832 (1), he could not successfully claim the county parliamentary vote; that the subsequent statute exempting ecclesiastical buildings from rating did not affect the question, and that the claimant could not sever the property occupied by him as owner or tenant so as to THE SAME. get the two votes. The revising barrister held (a) that the claimant's freehold land was of the value of 107. a year and upwards, and that he had a yearly income of that amount from the land, and that the income was sufficient in law to confer the freehold vote, and (b) that he occupied the land within the meaning of s. 24 of the Reform Act; he accordingly disallowed the claim, and struck out the names of seven other persons whose names were on the ownership list of voters for the division, and who were duly objected to for the same reasons and under similar circumstances. The whole of the appeals were consolidated. The question for the Court was whether the decision of the revising barrister was correct. SURREY COUNTY COUNCIL. REEVE v. REEVE v. CLERK OF THE COUNTY COUNCIL OF SURREY. The appellant had claimed a county vote for the Wimbledon Division in respect of his freehold benefice, St. Peter's, in the parliamentary borough of Croydon, and on objection the claim was disallowed. The appellant was the vicar of St. Peter's, a new parish cut out of the ancient parish of Croydon pursuant to the Church Building Acts. The freehold of the church and vestry site and the surrounding yard and the church caretaker's house were vested in the appellant under the statute. The caretaker's house, which was detached from the church, was occupied rent free by the caretaker, and was rated at 167., the rates being paid by the church wardens. There was no residence for the vicar attached to the living, the vicar residing in a house (1) Now known as the Representation of the People Act, 1832: see 59 & 60 Vict. c. 14 (The Short Titles 1904 WOLFE V. CLERK OF COUNTY COUNCIL. REEVE v. in the parish. The church and vestry buildings and the surrounding yard were used solely for the purposes of religious worship. There were no burial fees in respect of burials within the parish. The vicar's income was in part 50l., a money grant from the Ecclesiastical Commissioners, and part from pewTHE SAME. rents, which amounted to over 6007. a year, subject however to the payment of a yearly sum to the previous vicar, and to the payment of the stipend of a curate. The pews were inclosed, and single seats were let, the letting being done by the churchwardens, who received the money; the amount of the pew-rents fluctuated, having been only 3007. a year at the time of the appellant's appointment as vicar. The parish was constituted about 1854 under the Church Building or New Parishes Acts; the Ecclesiastical Commissioners settled a scale of pew-rents and assigned pews to be let by the churchwardens, and directed the churchwardens how the pew-rents were to be dealt with. The churchwardens collected the money and paid the vicar. No documents, copies, or extracts were produced to the revising barrister. The objector contended that the pew-rents were vested in or given to the churchwardens, that under the Church Building or New Parishes Acts the pew-rents could not be vested in the vicar of a new parish, and that outside the Ecclesiastical Commissioners and the persons referred to in 1 & 2 Will 4, c. 38, s. 4, there was no person or authority who could create or assign pew-rents in a new parish. He further contended that the income from pews was fluctuating; that it did not arise out of the freehold; that pew-rents in the present case were not ancient or customary income from a freehold such as would qualify for a vote. It was also argued that the vicar occupied his freehold land, and could not under s. 24 of the Reform Act, 1832, get a vote for the county in respect of the land he occupied in the borough, although the latter might not be rateable. The revising barrister was of opinion that the pews or sittings at St. Peter's were let by the churchwardens, and that the rents were collected and expended by them as public 1904 WOLFE v. CLERK OF SURREY COUNTY COUNCIL. REEVE v. parish officials pursuant to statutory authority, and he held that in the present case, and in connection with the letting of pews and the collection and expending of the pew-rents, the churchwardens were not the agents or servants of the vicar. He also found that the amount which the churchwardens were able to hand the vicar yearly out of the pew-rents was not less than 2001. a year, and that the freehold land owned THE SAME. and occupied by the claimant (namely, the site of the church and the yard surrounding the church) brought him an income of over 107. from pew-rents annually, and that the land was of that value clear of all outgoings. He held that the freehold land was of value sufficient in law to qualify the claimant for the county vote, but he also held that the claimant occupied his freehold land within the meaning of s. 24 of the Reform Act, 1832, and that it was of value sufficient to confer a borough vote in the parliamentary borough of Croydon; he accordingly disallowed the claim, and struck out the names of three other persons whose names were on the ownership list of voters for the division, and who were duly objected to for the same reasons and under similar circumstances. The whole of the appeals were consolidated. The question for the opinion of the Court was whether the decision of the revising barrister was correct. Daldy (J. E. G. de Montmorency with him), for the appellant. The appellant is entitled to be registered as a voter for the county in respect of his freehold benefice, notwithstanding that in respect of his dwelling-house he is also entitled to a borough vote. Sect. 24 of the Representation of the People Act, 1832, has no application to such a case as the present. The object of that section was to exclude freehold estate occupied by the owner within a borough, which by reason of its occupation might confer on him the borough franchise, from further conferring upon him a vote for the county. The case is not affected by the fact of the occupation by the appellant of a dwelling-house in another part of the borough, because, in order to give effect to s. 24, both the building and the land must be occupied as owner or as tenant under the 1904 WOLFE v. CLERK OF REEVE v. same landlord: Capell v. Aston Overseers (1); Burton v. Aston Overseers (2); and it cannot be contended that the dwellinghouse was held with the church and land by the appellant. The case for the respondent depends on whether the appellant can be said to occupy the church and surrounding freehold land in such a fashion as to entitle him in respect of such THE SAME. Occupation to a borough vote. The occupation must be as owner or tenant; the appellant clearly does not occupy the church as tenant, and it is submitted that he does not occupy as owner; if he does, every vicar of a church situated in a parliamentary borough would be entitled to a vote for the borough in respect of the occupation of his church. It is clear that there is no actual physical occupation of the church, such as would be requisite in the case of a dwelling-house, and it is an actual or material occupation which is contemplated by the statute. The revising barrister has confused possession and occupation, and has treated mere possession as equivalent to occupation for the purpose of s. 24. The possession of a church is in the minister and churchwardens: Griffin v. Dighton (3), affirming the view expressed by Sir John Nicholl in Jarratt v. Steele (4); and this being so, it is not possible that the occupation should be in the minister alone. In an ordinary case, "the mere existence of ownership or tenancy, which is consistent with the right of possession, and, consequently, with the occupation being in another person by means of a sub-demise, cannot of itself constitute occupation": Rogers on Elections, i. 112; and the nature of the occupation must be the same in the case of a church as of an ordinary house. Legal possession does not of itself constitute an occupation: Reg. v. St. Pancras (5), per Lush J. The view of Bovill C.J. in Beswick v. Alker (6), that "a right to receive pew-rents is not an occupation of land" is conclusively in favour of the appellant's contention and should be followed in this Court. The various Church Buildings Acts shew that this (1) (1849) 8 C. B. 1. (2) (1849) 8 C. B. 7. (3) (1864) 5 B. & S. 93. (4) (1820) 3 Phillim. 167. (5) (1877) 2 Q. B. D. 581, at p. 588. (6) (1872) L. R. 8 C. P. 265, at p. 268. |