Occupant.

Occupant "(1) means a person in actual occupation (m) mon staircase; Held, that each tenant was entitled to vote. Wright v. Town Clerk of Stockport, 5 M. & Gr. 33; see also Regina ex. rel. Forward v. Bartels (Long's case), 7 C. P. 539; Cirencester Election, 2 Fraser 451; Great Marlow Election, (Crosby's case), B. & Aust. 100; Score v. Huggatt, 7 M. & Gr. 95; Rex. v. Nusworth, 5 A. & E. 201; Toms v. Luckett, 5 C. B. 23; Wansey v. Perkins, 7 M. & Gr. 145; Evans and Fynche's Case, Cro. Car. 473; Middlesex Election (Anstey's Case), 2 Peck, 109; Stamper v. Overseers of Sutherland, L. R. 3 C P. 403; Barnes v. Peters, L. R. 4 C. P. 539; Boon v. Howard, L. R. 9 C. P. 277; Bradley v. Baylis, L. R. 8 Q. B. D. 195. As to difference between tenant and a lodger, see Ont. Franchise Act, 1885, s. 3, sub. s. 8, and notes, post.

A lessee or tenant for years, who is not restrained by his lease from subletting or assigning, may demise for any less term than he himself has, or may assign his lease, Woodfall's Landlord and Tenant (12 Ed.), s. 11.-Civil Code of Lower Canada, 1638, though only the tenant in possession for the year next before the 1st January preceding the revision, can be registered under s 3, subs. 3 and s. 4, subs. 4, post. In fact every tenant, except a tenant at will or at sufferance, has a right, in the absence of a contract to the contrary, to make a subtenancy, as incident to his tenancy-Woodfall, p. 12 (But see Brockville Case, Dunham's rote, 1 H. E. C. 136). But whether the tenant assigns his whole term, or sublets, which latter he may do by reserving a reversion of even one day only, he loses the right to vote, it is considered, by parting with the posseesion of the whole of the property leased. See sub. s. (4) of secs. 3 and 4. He who cultivates land on condition of sharing the produce with the lessor, can neither sublet nor assign his lease, in Quebec, unless the right to do so has been expressly stipulated--Civil Code, 1646.

46

(1) Occupant."--Occupancy is the taking possession of those things which before belonged to nobody.-Black. Com. 12th Ed., book 2, cap. 16. This right was confined by the common law of England to a single instance, viz: where a person who held an estate pur autre vie, or for the life of another, died during the life of the cestui que vie, or him by whose life it was held; in this case, he that could first enter on the land might lawfully retain the possession so long as cestui que vie lived, by right of occupancy, Ib. The term "occupant." however, as used in this and similar acts, has a more extended meaning and includes all those actual occupiers of property who cannot be classed as either owners or tenants, and yet are entitled to vote by virtue of such property. For instance, a squatter upon Crown Lands is considered to have a sufficient title to give him a vote.-Brough's Law of Elections, 12. Persons occupying jointly with the owner are usually assessed as occupants. Thus, before the farmer's son franchise was created in Ontario, many sons were assessed as occupants of their father's farms, where the fathers had given up the management and control of the farms to them, and though living on and supported from the farms.--See Stormont (Provincial) case, 1 H. E. C. 21, Brockville, Ib., 129, 3 Grenville, Ib. 163. In a milling business, where the agreement between the father and son was, that if the son would take charge of the mill and manage the business, he should have a share of the profits, and the son, in fact, solely managed the business, keeping possession of the mill, and applying a portion of the proceeds to his own use, it was held that the son had

of real property otherwise than as "owner," "tenant," or "usufructuary," in his own right, or in the case of a married man, in his own right or in the right of his wife, and who receives to his own use and benefit the revenues and profits thereof;

"Person" means a male person, including an Indian ("), Person.

such an interest in the business, and, while the business lasted, such an interest in the land as entitled him to be on the roll.-Stormont Election, (Bullock's rote.) 1 H. E. C. 27; 7 C. L. J. (N. S.) 213. See also Owen Baker's vote, 1 H. E. C. 31 ; S. Grenrille (Thomas Fitzgerald's vote), Ib. 165.

(m) The occupant must be in actual possession, as distinguished from possession in law. See Murray v. Thornibey, 2 C. B. 217; Heyden v. Overseers of Tiverton, 4 C. B., 1; Carroll v. Barry, 15 Ir., C. L. R., 373; Webster v. Ashton-under-Lyne Overseers, L. R., 8 C. P. 281; 42 L. J. C. P. 38.-See the words "actual occupation" in the text.

Before

(n) “Including an Indian.”—Indians in Canada were not hitherto entitled to all the privileges of British subjects unless they were enfranchised under 43 Vic., cap. 25, (Can.) or some of the previous statutes of which that Act is a consolidation, (Howell on Naturalization 10). By sec. 2, sub-sec. 5, of that act, the term enfranchised Indian means any Indian, his wife, or minor, unmarried children, who has received letters patent, granting him in fee simple any portion of the reserve which may have been allotted to him, his wife, and minor children, by the band to which he belongs, or any unmarried Indian who may have received letters patent for any allotment of the reserve. Sections 99-101 specify the mode of obtaining the letters patent. the issue of the letters patent, the Indian must declare to the Superintendent-General of Indian Affairs, the name or surname by which he or she wishes to be enfranchised, and thereafter known; and, on his or her receiving such letters patent, in such name or surname, he or she shall be held to be also enfranchised, and be known by such name, and if a married man, his wife and minor unmarried children, also, are held to be enfranchised, and from the date of such letters patent, any act or law making any distinction between the legal rights, privileges, disabilities and liabilities of Indians, and those of Her Majesty's other subjects, shall cease to apply to such Indian, or to the wife or minor unmarried children of such Indian, so declared to be enfranchised. 66 Any Indian admitted to the degree of doctor of medicine, or to any other degree by any University of Learning, or who may be admitted in any part of the Dominion to practice law, either as an advocate, or as a barrister, or counsellor, or solicitor, or attorney, or to be a notary public, or who may enter holy orders, or may be licensed by any denomination of Christians as a minister of the Gospel, may, upon petition to the Superintendent-General, ipso facto, become enfranchised under the Act," and the Superintendent may give him a suitable allotment of land from the lands belonging to the band of which he is a member.--Sec. 99, sub-sec. 1, Ibid. By the Ontario Election Act, all Indians enfranchised as above, and all Indians or persons with part Indian blood, who do not reside among Indians, though they partici

pate in the annuities, interest moneys and rents of a tribe, band, or body of Indians, are, subject to the same qualifications in other respects, and to the same provisions and restrictions as other persons in the electoral district, given the right to vote. But, the Indians, or persons with part Indian blood, who are entitled to vote where there is no voters' list, shall be the following, namely: :-" All Indians or persons with part Indian blood who have been duly enfranchised, and all unenfranchised Indians or persons with part.Indian blood who do not participate in the annuities, interest, moneys, or rents of a tribe, band, or body of Indians, and do not reside among Indians, subject to the same qualifications in other respects, and to the same provisions and restrictions as other persons in the electoral district."-(See Franchise and Rep. Act, 1885, Ont., S. 3, “Sixthly.") It will be seen that under the Ontario laws, only Indians who have received their patents and thereby became enfranchised, or who, while receiving their Indian annuities, live apart from other Indians, and possess the qualification of ordinary white voters, can vote in organized districts or municipalities; and in the unorganized municipalities they cannot vote, even when they live apart and possess the ordinary qualification of white voters, unless they give up their annuities. Under the Act under review, Indians in Manitoba, British Columbia, Keewatin and the North-West Territories, and any Indian on any reserve elsewhere in Canada, who is not in possession and occupation of a separate and distinct tract of land in such reserve, and whose improvements on such separate tract are not of the value of at least one hundred and fifty dollars, and who is not otherwise possessed of the qualifications entitling him to be registered on the list of voters under this Act, are excluded. See sec. 11, (c). All Indians, therefore, outside the Provinces and territories mentioned, who occupy separate allotments, though in the reserves, and while in receipt of their annuities, are given the franchise in Dominion elections.

not "

Indians are subjects (Reg. ex rel. Gibb v. White, 5 Pr. R. U. C. 315). An Indian, who is a British subject, and otherwise qualified (as by holding real estate in fee simple to a sufficient amount), was in Upper Canada held to have an equal right with any other British subject to hold the position of reeve of a municipality, even though enfranchised,” and though receiving, as an Indian, a portion of the annual payments from the common property of his tribe.-Ibid. A person entered into an agreement to farm the land of an Indian woman on shares for five years and took possession. He was found guilty of a misdemeanor under 13 and 14 Vic. cap. 74. (Regina v. Hagar, 7 U. C. C. P. 380). Such arrangement therefore could not confer a right to vote upon a white person. The prohibition against the sale, leasing, etc., of lands by Indians, applies only to lands reserved for their occupation, and not to lands to which any individual Indian has acquired a title. -Totten v. Watson, 15 U. C Q. B. 392. It may be of interest to mention that in a recent Ontario case (Bryce et al v. Salt, before the Master in Chambers, Oct. 2nd, 1885), it has been held that there is nothing to prevent an Indian, though living on the reserve, as one of a band, from suing or being sued, and judgment may be ordered against him, though such judgment will not bind any property of the Indian, except property subject to taxation under sec. 75 of the Act of 1880.

Parliament in 1884 enacted a law entitled "The Indian Advancement Act, 1884," which after reciting that "it is expedient to provide means by which Indians on

and excluding a person of Mongolian or Chinese race (o):

reserves in divers parts of the Dominion, may be trained for the future exercise of municipal privileges and powers," provides that whenever any band or bands shall be declared by order in Council to be considered fit to have the Act applied to them, it shall so apply from the time appointed in such Order, which shall not bear date earlier that 1st January, 1885 (Sec. 3); that any reserve to which the Act is to apply shall be divided into sections (Sec. 4); for the election of Councillors for each section by the electors thereof, being the male residents of the full age of 21 years (Sec. 5); for a first meeting of the Councillors, and the election of one of them as Chief Councillor (Sec. 6); for annual elections thereafter (Sec. 7); for the making of By-laws, etc., subject to the approval and confirmation of the SuperintendentGeneral, to have the force of law on the reserve, upon the following subjects. 1. The religious denomination of teachers of schools; 2. Public Health; 3. Decorum at elections and generally; 4. The repression of intemperance and profligacy; 5. Sub-division of the lands among the members of the band; 6. Trespass by animals; 7. The construction and repair of school-houses and other buildings; and 8. Roads and bridges, and the appointment of road-masters and fence viewers; 9. Watercourses, ditches, fences, etc., and the preservation of wood: 10. Punishment of trespassers; 11. Raising money by assessment and taxation on the lands of Indians unfranchised or in possession of lands by location ticket in the reserve; 12. Appropriation of moneys of the band to carry out by-laws, etc; 13. Imposition of penalties and enforcement thereof; 14. Amendment, repeal or re-enactment of by-laws. This Act provides the machinery whereby the Indians may enjoy self-government in municipal matters. The Franchise Act will give many of them a voice in the affairs of the nation at large.

See, as to penalty on Indian agent seeking to induce or compel an Indian to be registered as a voter, or to vote or refrain from voting, sec. 64, post.

(o)" Mongolian or Chinese race."--The Mongols were a race originally inhabiting what is known as Mongolia. Their empire, under the great conqueror Jenghiz Khan, who died in 1227, extended from the China Sea to the banks of the Dnieper. They had conquered the Cathayans or Chinese and had overrun, to a great extent, the Russian territory. The conquests of Jenghiz and his successors spread not only over China and the adjoining East, but westward over Northern Asia, Persia, Armenia, part of Asia Minor and Russia, threatening to deluge Christendom. Though the Mongol wave retired, as it seemed almost by an act of Providence, when Europe lay at its feet, it had levelled or covered all political barriers from the frontier of Poland to the Yellow Sea. China and Russia ultimately absorbed the native and acquired territories of the Mongols. With the absorption of the Khanate of Bokhara and the capture of Khiva by the Russians, the individual history of the Mongol tribes came to an end, and their name has left its imprint only on the dreary stretch of Chinese owned country from Manchuria to the Altai Mountains, and to the equally unattractive country in the neighborhood of the Koho-nor. For the purposes of the Act the Mongolians or Chinese are classed as one race--as probably they were in fact-though they are by no means to be found only within the limits of the Chinese Empire. (See Encycl. Brit. 9th Ed. under Mongols, China, Asia, etc.)

Farm.

City.

Exceptions.

Town.

Incorporated village.

Parish.

Father, mother.

Farmer's son.

Son of owner of

"Farm means land actually occupied by the owner thereof and not less in quantity than twenty acres; and farmer" means such owner thereof;

66

City" means a place incorporated as a city or recognized as such, by or under any Act of the Parliament of Canada or of the Legislature of the Province in which it is situate; except the cities of Hull and St. Hyacinthe, in the Province of Quebec, which, for the purposes of this Act, shall be held to be towns;

"Town" means a place incorporated as a town or recognized as such, by or under any Act of the Parliament of Canada or of the Legislature of the Province in which it is situate;

'Incorporated village" means a place incorporated as a village or recognized as such, by or under any Act of the Parliament of Canada or of the Legislature of the Province in which it is situate;

Parish" means any tract of land which is generally reputed to form a parish, whether such tract has or has not been wholly or in part originally erected into a parish by the civil or ecclesiastical authorities, and which now exists as a territorial division;

Father" includes grandfather, stepfather and fatherin-law, and "mother" includes, stepmother and motherin-law;

person

not otherwise

Farmer's son" means any male qualified to vote and being the son of an owner and actual occupant of a farm, and includes a grandson stepson or son-in-law;

Son of an owner of real property" in cities and real property. towns means any male person not otherwise qualified to vote and being the son of an owner and occupant of real property, and includes a grandson, stepson or son-in-law ;