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OF OCCUPA-
TION.

By officers

or servants.

pressly or impliedly made a part of such duty or service, there CHARACTER the relation of landlord and tenant is not created. But where, without any obligation to reside in a particular dwelling, an officer or servant chooses to occupy a house which is provided for him, the circumstance that he receives less salary or wages in consideration of the benefit he derives from occupying a house convenient for the discharge of his duty or service, or that he would have an allowance for rent or lodging-money if he did not occupy it, will not prevent him from occupying as tenant.

dockyard.

Hughes v. Overseers of Chatham, 5 M. & G. 54; 1 Lutw. 51; Master rope13 L. J., C. P. 44.—J. B., a master rope-maker, occupied a house maker in in the dockyard, belonging to the Admiralty, of the value of 401. per annum. He held this house rent-free in part remuneration of his services, and had the entire and exclusive occupation and control over it, and the keys of all the doors. No part was used for the public service. The poor rates and taxes for which he was rated were paid by the paymaster-general as part of his remuneration. If he had not been allowed a house, he would have had an addition to his salary, and was actually allowed lodging-money when he left the house. If he had himself paid the poor rates, they would have been repaid.

Lieutenant P.'s case, ibid., was substantially the same as the above, but it was added that officers, when unprovided with Government houses, have usually an allowance for rent and taxes under the name of lodging-money. Lieutenant P. was not com. pelled to live in the house, but if he lived elsewhere, except by desire of the Admiralty, he would have had no allowance for lodging-money.

In the above cases, and two more of a similar kind, it was held that the relation of landlord and tenant was established; Tindal, C.J., saying that there was no inconsistency in the relation of landlord and tenant with that of master and servant. A master may pay his servant by conferring on him an interest in real property; and, if he do so, the servant is entitled to the legal incidents of the estate as much as if he had purchased it. On the other hand, a servant may occupy a tenement of his master, not as payment for service, but for the purpose of performing it, not being permitted to occupy as a reward, but required to occupy in performance of the contract to serve (m). That there was nothing in the above cases to show that the party was required to occupy the house for the performance of his services, or did occupy it in order to their performance, or that it was conducive to that purpose more than any other house which he might have paid for in any other way than by his service, and as the case expressly

(m) See Petersfield, 2 O'M, & H. 97.

OF OCCUPA

CHARACTER found that he had the house as part remuneration for his services, the Court could not say that the decision of the barrister was wrong.

TION.

By officers or servants. Surgeon to Greenwich Hospital.

Sergeant of militia.

Domestic
servant
or farm
labourers.

Dobson v. Jones, 5 M. & G. 112; 1 Lutw. 105; 13 L. J., C. P. 126.-Sir R. D., as surgeon to Greenwich Hospital, occupied a house appropriated to the surgeon in the infirmary. The fixtures were provided for him, but the furniture was his own. All neces sary repairs were done by the commissioners, by whom also all rates and taxes were paid. Though he was the person rated, no demand had ever been made on him, nor had he ever had any communication from the Admiralty on the subject. There was an order that surgeons of hospitals, when not provided with a residence within the hospital, were to be allowed 15s. a week; and by the regulations of the service "all officers and others having separate apartments are to inhabit those assigned to them, and no exchanges or other appropriations of apartments, or alterations therein, are to be made without express permission. They are to use their best endeavours to preserve them unimpaired, and in a neat and proper state of cleanliness and repair, and they will be required to make good any loss or injury arising from negligence or inattention on their parts." The Court said, that on these facts the barrister had come to the conclusion, that the appellant occupied the house not merely by permission, and as part of the remuneration for his services as surgeon, but that he was required to occupy it, with a view to the more efficient performance of the duties of his office, and consequently that there was no occupation by him in the legal relation of tenant to a landlord, and upon such facts it could not be said that the barrister came to a wrong conclusion. Acc. Clark v. Overseers of Bury St. Edmunds, 1 C. B. (N.S.) 23; 26 L. J., C. P. 12; K. & G. 90.

And a similar decision with regard to a sergeant of militia, who occupied a house built for that purpose adjoining to the militia stores, and who could not leave it without the permission of his commanding officer. For v. Dalby, L. R. 10 C. P. 285; 2 H. & C. 261; 44 L. J., C. P. 42. And see Smith v. Seghill, L. R. 10 Q. B. 422; where it was held that the occupation must not only be required, but must also be necessary for and ancillary to the performance of the required duties.

In Redmond's case, B. & Aust. 36, the voter was butler to A., and held of him a house, two gardens, shop, and sawyard, at a rent of 127. 128. The voter went about with A. as his servant, and let the premises to other persons, who paid rent sometimes to the voter, but oftener to A.'s agent. The voter had only a bed in the house, and never slept on the premises, except for two nights shortly before the election. The yard was used by A. The voter was rated for the premises, but the collector did not apply to him

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OF OCCUPA

for the rates, but received them from A.'s agent, in a lump with CHARACTER other rates due from A.; but A.'s agent said that the voter repaid TION. him the amount of the rates. The rent was paid very irregularly, Domestic but this was accounted for by the voter's continual absence with servant A. It was argued that there was no real bonâ fide occupation, no real letting or taking, nor any legitimate user as tenant; that the voter lived with A., and had no use for the cottage or other premises, being a single man. Vote bad. Acc. Per Cur., Cook

v. Humber, K. & G. 425; 31 L. J., C. P. 54 ; Petersfield, 2 O'M. & H. 97, which was the case of farm labourers.

or farin labourers.

It is under this head, viz., the character of the occupation, that Lodgers. the lodger franchise may be most fitly discussed.

Previous to the year 1832, lodgers were not, as such, entitled to the franchise, although they might as "inhabitants" or freemen have enjoyed it. The landlord in popular estimation, was always looked upon as the householder, or paterfamilias, the master and occupier of the house. A lodger was never considered as a complete scot and lot man; he was not called upon to serve parochial offices, nor generally had he either the duties or immunities of a householder; Fludyer v. Lombe, Ca. Temp. Hardw. 307; Mayor of London v. Mayor of Lynn, 1 B. & P. 500 (n); nor was the time for which rooms were taken held to alter the character of the taker: he was still considered a lodger, whether they were taken for a night or a twelvemonth. In R. v. North Collingham, 1 B. & B. 578, the lodger had continued for four years; in Lee v. Gansel, Cowp. 1, the apartments had been rented from year to year for twenty-eight years. Nor was the franchise conferred upon him by the 2 Will. 4, c. 45, not because he was not a tenant within the meaning of that Act, for it was held in Cook v. Humber, post, p. 65, that he was; nor because that he did not occupy, for of course he does, but because he did not occupy a "house" within the meaning of that Act, but only "part of a house."

The provisions of the 30 & 31 Vict. c. 102 as altered by 41 & 42 Vict. c. 26, must now be considered. Under the former Act the lodger must have occupied the same lodging, being part of one and the same house, separately and as sole tenant for the necessary

(a) So, it is said, "No lodger, though possessing a principal part of the house, was ever rated." 1 Nolan's Poor Laws, 169. On a similar principle it is held, that the owner of a house, residing in one part of it and letting out the rest in lodgings, does not commit a burglary by breaking open the apartments of his lodgers. Russell on Crimes, 940; Kelynge, 83. And in Doe v. Laming, 4 Campb. 73, it was held by Lord Ellenborough, that letting lodgings does not fall within a covenant against "underletting" in

a lease.

OF OCCUPA
TION.

CHARACTER period; by the latter Act, s. 6, subsect. (1), lodgings (0) are not to be deemed to be different by reason only that the lodger has occupied some other rooms or place in addition.

Lodgers.

Residence

of.

By the same sect., subsect. (2) the occupation in immediate succession of different lodgings of the requisite value in the same house is to have the same effect as continued occupation of the same lodgings. And by subsect. (3) the most important change of all is introduced. It provides that two joint occupiers of lodgings may be registered, if the value is sufficient, when divided by the number of the lodgers, to give 107. for each.

It is to be observed that the value must be sufficient when divided by the number of the lodgers, which may of course exceed two, though only two can be registered.

It has been held that a shop and parlour separately occupied, but not structurally severed from the rest of the house, are lodgings; Lang v. Edwards, 1 Ir. R. (R. & L. App.) 25; and that a house let out in separate tenements will confer the franchise upon those occupying it as lodgers, though the landlord retains no control over the outer door, and cannot enter the house as of right, and without the consent of his tenants. Edwards v. Lang, 1 Ir. R. (R. & L. App.) 34.

A clerk who separately occupies a furnished bedroom of sufficient value in the house of his employer is entitled to be registered as a lodger, unless he is required to occupy the bedroom for the purpose of the performance of his duties, within the principle of Hughes v. Overseers of Chatham, ante, p. 55. Parker v. Campion, 1 Ir. R. (R. & L. App.) 75.

The lodger must also have "resided" in the lodgings for a twelvemonth. The decisions on the subject of residence will be found post, p. 92. It seems from them, that the word "resided" is equivalent to the inhabitancy necessary for the dwelling house franchise, see post, p. 59; and it has been held that a servant in attendance upon a gentleman, at whose lodgings for convenience sake he usually slept, but whose wife and family occupied lodgings in another parish, at which lodgings he usually slept once or twice a week, "resided" at such last mentioned lodgings within the meaning of the Act; Taylor v. Overseers of St. Mary Abbott, Kensington, L. R., 6 C. P. 309; 1 H. & C. 421; 40 L. J., C. P. 45 ; and that a gentleman who is tenant of lodgings in London for the requisite period, and who occupies such lodgings when he comes up to town, "resides" there, although he has another and more

(0) By s. 5, the term "lodgings" is to include any apartments or place of residence, whether furnished or unfurnished, in a dwelling-house.

permanent residence in the country. Bond v. Overseers of St. CHARACTER George, Hanover Square, L. R., 6 C. P. 312,

OF OCCUPA-
TION.

Lodgers.

QUALIFICA

The subject-matter of the occupation or nature of the qualifi- Residence cation must be either a dwelling-house within the meaning of the of. 3rd section of the 30 & 31 Vict. c. 102, which includes any part of NATURE OF a house separately occupied as a dwelling, 41 & 42 Vict. c. 26, s. 5, TION. or "a house, warehouse, counting-house, shop, or other building," Dwellingwithin the meaning of the 2 Will. 4, c. 45, s. 27, which includes house. any part of a house separately occupied for the purpose of any trade, business, or profession, 41 & 42 Vict. c. 26, s. 5-the only difference being, that in the case of a dwelling-house, the question of value is immaterial, whereas any building that is not a dwellinghouse must be of the value of 101.

Some difficulty may be experienced in applying the term "dwelling-house" to cases where a person occupies offices or chambers by day, going elsewhere to sleep at night, but leaving the offices to the care of a servant, residing on the premises. Are such offices his dwelling-house? It would seem that the term dwelling-house can only refer to the place where the voter's family dwells, and where he himself resides with them, when not engaged on business or pleasure elsewhere. Sce Cuthbertson v. Butterworth, L. R., 4 C. P. 523; 1 H. & C. 188; 38 L. J., C. P. 98). It is clear in the first place, that the term dwelling-house is not the same as house, for it has been decided that a house need not be dwelt in at all (Daniel v. Coulting, post, p. 63, and it is clear ex vi termini, that to constitute a dwelling-house some one must "dwell" in the building, nor does the term occupier assist in the construction, for it is clear that a building, which is not a dwelling-house, may be occupied, e. g., a warehouse, by goods (Daniel v. Coulting), or a shed by cattle (Whitmore v. Bedford, post, p. 68.) Recourse then must be had to the precise terms of the statute, 30 & 31 Vict. c. 102, and this, it is to be observed, confers the franchise upon every “inhabitant occupier, as owner or tenant, of any dwellinghouse." The use of this term "inhabitant," which has frequently received an interpretation both from courts of law and decisions of the House of Commons, in cases of the old franchise of "inhabitancy," seems to afford a clue to the meaning of the statute.

The word "inhabitant" then, it has been held, varies in its import according to the subject to which it is applied. The occupier of a tenement not used as a dwelling-house may be said generally to be an inhabitant of the place where his tenement is situate for all purposes of pecuniary charge. R. v. Adlard, 4 B. & C. 772. Att.-Gen. v. Foster, 10 Ves. 335. But for the performance of personal duties, or the exercise of a personal

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