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Regina v. Coward.

joinder mentioned, and for the time therein in that behalf mentioned, and that the said Gonville Place before and at the time of the said alleged election, &c., was commonly understood, that is to say, in and throughout the said borough to continue and be the place of abode of the defendant, and that the said several descriptions of the defendant, in the said several voting papers so delivered as aforesaid, written and contained, as the person voted for as aforesaid, were respectively such descriptions of him, the defendant, by the Christian name and surname, with the place of abode and description of him, the defendant, as to be and as then were commonly understood in and throughout the said borough, to wit, as descriptions of him, the said defendant, by his Christian name and surname, with his place of abode and description, are not sufficient to render the said voting papers, or any of them, or the said supposed election of the defendant, good, valid, or sufficient. That by the said rejoinder it is alleged that the said Gonville Place had been and was the place of abode of him, the defendant, for three years next before and up to and until twenty days before the said election, which is a doubtful, ambiguous, and uncertain averment, upon which no definite, certain, material, or proper issue can be taken. And also, that it is uncertain whether the defendant by his rejoinder intends to aver that Gonville Place had been his abode up to and until the time of the said election, or only up to and until the commencement of a short time before the said election; and if the defendant means to allege that Gonville Place had been his place of abode up to and until the time of the said election, then he should have traversed so much of the replication secondly above pleaded, as is inconsistent with and contrary to such an allegation, &c.

Joinder in demurrer.

Watson, in support of the demurrer. The question is, whether the description of the place of abode of the defendant was sufficiently stated in the voting papers. That it was not accurately stated is plain, because it appears that he resided at Newmarket Road instead of at Gonville Place, and that these two places are in different wards. Therefore, the 5 & 6 Will. 4, c. 76, s. 32, is not complied with, which requires the voting paper to contain the Christian names and surnames of the persons voted for, with their respective places of abode and descriptions. But reliance will be placed by the defendant on sect. 142, which provides "that no misnomer or inaccurate description of any person, body corporate, or places named in any voting paper required by the act, shall hinder the full operation of the act with respect to such person, body corporate, or place, provided that the description of such person, body corporate, or place be such as is commonly understood." But that question does not apply, as this is not a misnomer or inaccurate description. It is an accurate description of a wrong place. In The Queen v. Deighton, 5 Q. B. Rep. 896; s. c. 13 Law J. Rep. (N. s.) Q. B. 241, the voting paper stated the place of business, instead of the place of abode of the candidate,

Regina v. Coward.

and it was held that it was an untrue description, and not cured by sect. 142. Sheldon v. Flatcher, 5 Com. B.. Rep. 14; s. c. 17 Law J. Rep. (N. s.) C. P. 34, is to the same effect upon the words of the Registration Act, which are precisely similar to those in this act.

Cowling, contra. The rejoinder alleges that the description of the defendant in the voting paper was such as was commonly understood. It must, therefore, be taken on this demurrer that every voter understood he was voting for the defendant. The defendant had, in fact, resided in Gonville Place until just before the election, and it cannot be said because a candidate changes his abode the day before the election, that his election will be invalid, when it is clear that he was the person intended. That would, in effect, disfranchise all the voters who were not aware of his change of residence. This is, in truth, a falsa demonstratio. Sect. 32 does not refer to the qualification, but to the identification of the candidate, and the word "description" there means the same as what is commonly termed " addition," the omission of which is immaterial. It is required that the name and place of abode should be truly stated, but to provide for mistakes in respect of those matters sect. 142 is added, which enacts that the election shall be valid if the description be such as is commonly understood. The word "description" there is not used in the same narrow sense as in sect. 32, but it includes every inaccuracy either in name or place of abode.

[Wightman, J. It is "description of any person, body corporate, or place." You confine it to description of the person.

Patteson, J. There is no inaccurate description of the place, because "Gonville Place" is an accurate description of a place. You want to make the place of abode a part of the description of the person.]

The word "misnomer" shows that the word "description" cannot be confined as suggested on the other side. Suppose a man's name be Josiah, and he is voted for as Joseph, surely that would be cured. as a misnomer, and yet it cannot be said that Josiah is an inaccurate way of describing Joseph. It is a wrong name, and yet it is cured. So it is sufficient if the wrong place is given, provided the description of the candidate be such as is commonly understood. Haslope v. Thorne, 1 M. & S. 103; Rolfe v. Swann, 1 Mee. & W. 305; s. c. 5 Law J. Rep. (N. s.) Exch. 168, and Hill v. Harvey, 4 Dowl. P. C. 163. The Queen v. Deighton arose out of the election of an alderman under the 7 Will. 4, & 1 Vict. c. 78, s. 14, which neither contains any clause like sect. 142 of the 5 & 6 Will. 4, c. 74, nor incorporates that act. The observation in Sheldon v. Flatcher was a mere obiter dictum, not part of the judg ment, and besides, there the mistake being in the description of the objector more weight would be given to it. But the replication is bad in point of form. It should have stated that this description was untrue, and also that it was not such as could be commonly understood. Sect. 142 is not a proviso, but an interpretation clause, to be taken as part of sect. 32.

Regina v. Coward.

[Wightman, J. It is hardly possible that Gonville Place and Newmarket Road could be commonly understood as being the same place, for the replication avers that they are in different wards.]

Such an averment is mere surplusage, and is not in issue. 1 Wms. Saund. 233, b. Lawton v. Hickman, 9 Q. B. Rep. 588; s. c. 16 Law J. Rep. (N. s.) Q. B. 20, 24.

Watson, in reply, referred to The Queen v. Hammond.1

PATTESON, J.2 The replication is good, because it proceeds on the supposition that the description is entirely wrong. No person could mistake what "Gonville Place" means; but it is a wrong place of abode instead of a mere false description, and is not a case within sect. 142. If so, there could be no necessity for negativing any thing provided in that section. Then, the rejoinder seeks to bring it within that section, by saying that this is a description by which the person voted for would be well known, and treating it as an inaccurate description of the person. The question is, What is the meaning of that section? whether we are to hold that the place of abode is part of the description of the person voted for, or rather, as it seems to me, that there must be a description of the person and of his place of abode? Reading sect. 142 thus, reddendo singula singulis, no inaccurate description of any person, or of any body corporate, or of any place, is to prevent the full operation of the act with respect to such person, body corporate, or place. This is not an inaccurate description of the real place of abode, but it is, in truth, an accurate description of a wrong place. Therefore the demurrer must prevail.

WIGHTMAN, J. By sect. 32, the voter is to deliver in a voting

1 THE QUEEN v. HAMMOND.*
January 29, 1851.

This was a rule nisi for a quo warranto for exercising the office of town councillor of the borough of Great Yarmouth. The objection to the election of the defendant was, that he was described in the voting papers as "of Church Road, Gorleston, miller," his residence being, in fact, in High Street, Gorleston. The mill where he carried on his business was within a few paces of his residence, but it abutted on an unfrequented road called Church Road.

O'Malley showed cause, and contended that this was such a misdescription as was cured by sect. 142, and cited Haslope v. Thorne.

Welsby, in support of the rule, referred to The Queen v. Deighton, and Sheldon v. Flatcher.

Per Curiam. If this had been described as Church Row, instead of Church Road, it might have been cured, but this is a description of a wrong place.

Rule absolute.

2 LORD CAMPBELL, C. J., was sitting in the court for Crown Cases Reserved.

*20 Law J. Rep. (N. s.) Q. B. 362.

Regina v. Coward.

paper containing the Christian names and surnames of the persons for whom he votes, with their respective places of abode and descriptions. Three things are to be stated, and it is admitted that the omission of any one of them would be fatal. But it is argued that if the place of abode is not truly stated, but some other place is put down in the voting paper, this is an inaccuracy which may be cured by sect. 142, if the description be such as would be commonly understood. Now, that section speaks of an inaccurate description of a person, referring to the first and third of the requirements in sect. 32. It then speaks of an inaccurate description of any place named in the schedule, or in any voting paper, thus clearly distinguishing between the person of the candidate and the place which is described as his place of abode. Therefore, reddendo singula singulis, if this be an inaccurate description of the person, or of the place which is stated in the voting paper, it will not vitiate, provided the description of such person or place be commonly understood. If this had been an inaccurate description of the place, such as by writing "road" for "row," or the like, it might have been cured. But the place is truly described as Gonville Place, which is not the true place of abode.

ERLE, J. The voter is required to state the place of abode of the candidate, which in this case was the Newmarket Road. The place actually stated was Gonville Place, and it is clear that this is not a compliance with the act. But it is said that this is sufficient, because Gonville Place was at some previous time the place of abode of the candidate, and that many people thought he was still living there, and therefore that the description was commonly understood so as to make sect. 142 apply. But I think the words "description of any person" do not apply to the place of abode, as predicating that a man has his dwelling there, but to the Christian and surname of the candidate. An inaccurate description of the place can only occur where the accurate description is known to the person signing, and he intends to put that description, but fails to do so. Here the voter did not mean to say the candidate resided in the Newmarket Road, but at Gonville Place, which he had left. I am very unwilling to put any construction upon the statute which would defeat its object, unless we are obliged to do so. I find a judgment like this by Maule, J., in Ebsworth v. Farrer, 1 Lutw. Regist. Ca. 517, where he says, "I conceive the words 'commonly understood' must be taken to apply to cases where the description given would in its popular sense convey precisely the same meaning as if the more accurate and legal description had been employed; as where a person describes a parish by some popular name, or where a part of a name is omitted in some place." Newmarket Road is the place to be described; Gonville Place is not an accurate mode of describing that place.

Judgment for the crown.

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To a declaration in trespass quare clausum fregit, the defendant pleaded that he was occupier of a close called Backside Mead, with certain lands thereunto adjoining, and of another close called Mead, and divers, to wit, two other closes next adjoining thereunto, and justified under a right of way from the said Backside Mead over the locus in quo, and thence into the said Mead for the better use, occupation, and enjoyment of the said Backside Mead, the said lands adjoining thereto, and the said Mead and the said adjoining closes respectively :·

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Held, on special demurrer, that the plea stated with sufficient certainty the closes in respect of which the said right of way was claimed.

TRESPASS for breaking and entering a close called "Six Acre Ryams."

Plea, that before and at the several times when, &c., the defendant was the occupier of a certain close called Backside Mead, with certain lands thereunto adjoining, and another close called Mead, and divers, to wit, two other closes next adjoining thereunto; that he, the defendant, and the respective occupiers for the time being of the said several closes and lands for and during the full period of twenty years next before the commencement of this suit had and each had actually had, used, and enjoyed as of right and without interruption, and had and each of them had been accustomed to have and enjoy as of right and without interruption, a certain way for himself and themselves, his and their servants, to go, return, &c., on foot, &c., from the said Backside Mead unto, into, through, over and along the said "Six Acre Ryams," and thence unto and into the said Mead at all times, &c., for the better use, occupation, and enjoyment of the said Backside Mead, the said lands adjoining thereunto, and the said Mead and the said adjoining closes respectively. [The plea then justified committing the trespass by using the said way for the purposes aforesaid.]

Special demurrer, on the grounds that the plea did not show with sufficient certainty in respect of what closes and lands, other than the said closes called Backside Mead and Mead, the right of way was claimed, nor the number or names or abuttals of the said other closes and lands, and that the plea, in effect, set up several rights of way, and was double and ambiguous. Joinder in demurrer.

W. R. Cole, in support of the demurrer. The plea is defective, because it does not allege with certainty in respect of what closes the defendant claims to have a right of way. Greater certainty is required in a plea than in a declaration, and more than ordinary precision is required in a plea which goes to defeat an estate. Per Bosanquet, J., in Simons v. Farren, 1 Bing. N. C. 272. The 2 & 3

1 20 Law J. Rep. (N. s.) Q. B. 365.

2 May 6, before LORD CAMPBELL, C. J., PATTESON, WIGHTMAN, and ERLE, JJ.

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