Q. B.]

should be stated in the form of a special case for the opinion of this court, which case was stated as follows:

It is contended on the part of the appellant that as he produced satisfactory evidence of his good character, that as it was not proved that the house in respect of which he applied, or any adjacent house or shop was of a disorderly character, or frequented by thieves, prostitutes, or persons of bad character, or that the appellant had forfeited a previous licence for misconduct, or had through misconduct been previously adjudged disqualified from receiving any licence, or from selling beer, cider, or wine, and that as he the appellant proved that he and the house in respect of which he ap plied, were duly qualified as by law is required, and that on the 1st May 1869 a licence was in force with respect to the said house for the sale by retail of beer to be consumed on the premises, it was not lawful for the justices to refuse his application for a certificate, and that such house, so long as it is duly qualified as by law is required, and is not frequented by persons of bad character, but is occupied by an owner with whose character the justices are satisfied, has a vested interest in such certificate; which contention is disputed by the respondents, who allege that, as during the latter part of the year 1869, and the first part of the year 1870, a licence was not in force in respect of the said house, they were authorised in considering the application for a certificate by the appellant as an original one, and in requiring the appellant, on applying for a certificate, to satisfy them of the necessity for such a licensed house in the neighbourhood.

The question for the opinion of the court is, whether it was lawful for the justices to refuse an application for a certificate, it having been proved that a licence was in force in respect of the said house on the 1st May 1869, and the grounds specified in sect. 8 of the statute 32 & 33 Vict. c. 27, having been disposed of to their satisfaction.

By sect. 19 of the 32 & 33 Vict. c. 27, it is enacted that

Where on the 1st May 1869 a licence under any of the recited Acts is in force with respect to any house or shop for the sale by retail therein of beer, cider, or wine, to be consumed on the premises, it shall not be lawful for the justices to refuse an application for a certificate for the sale of beer, cider, or wine, to be consumed on the premises, in respect of such house or shop, except upon one or more of the grounds upon which an application for a certificate under this Act in respect of a licence for the sale of beer, cider, or wine, not to be consumed on the premises, may be refused in accordance with this Act: Provided that, where a person licensed in respect of such house or shop to sell therein by retail beer, cider, or wine, to be consumed on the premises, is convicted after the passing of this Act of more than one offence against the tenor of his licence, or of more than one offence for which any penalty is imposed by any of the said recited Acts, the justices by whom such person is convicted may, if they think fit, order that the house or shop shall for the purposes of this section be thenceforth deemed to be a house or shop in respect of which no licence for the sale by retail of beer, cider, or wine was in force at the time of the passing of this Act, &c.

Hannay appeared for the appellant. The magistrates were wrong in refusing the certificate, as the house had a licence on the 1st May 1869, and two convictions had not taken place, as mentioned in the proviso of the 19th section. It could not have been the intention of the Legislature that with regard to an old licensed house, if the landlord turns out of possession a tenant who has misconducted himself, the landlord is to forfeit the

[Q. B.

advantage of the licence, though he himself may take possession and seek for a renewal of the certificate. [LUSH, J.-The case states that the licence was lost. How was it lost by the former tenant ?] That does not appear. The case merely states that the licence was lost in consequence of the personal misconduct of a former occupier. The Act never intended to prevent the owner from getting a good tenant where there has been a bad one whom he has turned out. The magistrates treated the application of the appellant as an original application. [COCKBURN, C. J.-Does not the 19th section imply that there is an existing licence ?] The applicant applied as soon as he had any power to do so. He had first to turn out the tenant who had misconducted himself. [CockBURN, C. J.-The section surely applies only to the renewal of licences. Can it be said that this was an application for a renewal when a twelvemonth had elapsed for the refusal to renew the former certificate?] The object of the Legislature was to protect the interests of old licensed houses. In Reg. v. The Justices of Lancashire (23 L. T. Rep. N. S. 461), Lush, J., in giving judgment, says: "When on the 1st May 1869 a licence is in force with respect to any house, for the sale by retail of beer to be consumed upon the premises, it shall not be lawful to refuse an application for a certificate for the sale of beer to be consumed on the premises, except on one or more of the grounds upon which a licence to sell beer, to be consumed off the premises, may be refused." In the present case there was no objection whatever to the appellant, but the magistrates chose to treat the application as though the house had never had a licence.

Campbell Foster, for the respondents, was stopped by the court.

COCKBURN, C.J.-I am of opinion that the magistrates were right. The house certainly had a licence on the 1st May 1869, and if at the next licensing day an application had been made by the appellant for a certificate, and it had been refused, the magistrates may have been wrong, and they may have been compelled to grant it. It was the intention of the Legislature to put the granting of certificates in the discretion of the magistrates, with this exception, that where the house had a licence on the 1st May 1869, they shall not be at liberty to refuse the certificate, except upon one of the grounds mentioned in the 8th section. The existing licences, therefore, were not to be interfered with except for the cause mentioned. That provision, however, cannot be made to extend to cases where the licence has dropped. In such a case the magistrates have still a discretion to exercise. In the present case the certificate was not renewed in 1869, and when, therefore, the appellant came in 1860 for a renewal of the certificate, the magistrates were justified in treating it has an original application, and in exercising their discretion with respect to the wants of the neighbourhood.

MELLOR, J.—I am of the same opinion. It is not disputed that in the case of a new application the magistrates have a discretion as to granting or refusing a certificate. In this case the old licence was forfeited, and was at an end. In the succeeding August another application was made to the magistrates for a certificate. The magistrates, considering this to be a new application, and the wants of the neighbourhood not requiring such a house, they

exercised their discretion in refusing the certificate; and in this I think they were justified.

LUSH, J.—I am also of the same opinion. It is clear from the construction of the 19th section that it was not intended that magistrates should put an end to the then existing licences without a cause; but when for any sufficient cause the licence has been put an end to, then they are at liberty upon any fresh application to exercise their discretion.

Judgment for the respondents, with costs. Attorneys for the appellant, Terry and Robinson, Bradford.

Attorney for the respondent, G. R. Mossman, Bradford.

COURT OF COMMON PLEAS. Reported by M. W. MCKELLAR, and H. H. HOCKING, Esqrs., Barristers-at-Law.

REGISTRATION APPEAL.

Jan. 20 and April 24, 1871. ROLLESTON (app.) v. COPE (resp.). Vote for a county-Shares in a building society— Value of freehold-8 Hen. 6 c. 7.

The claimant had, in 1863, conveyed three houses, of which he was owner in fee, to a building society, by way of mortgage, as security for 300l. advanced to him by the society. He was bound by the deed and the rules to pay monthly instalments of 31. 98. for ten years. He was in actual possession of the property and had paid 3501., which was the whole amount then due. He had two years' payments still to make, but he might redeem the mortgaged property for a present payment of 731. 18.

The annual value of the houses was 311. 4s. The annual payments by the claimant were 411. 88., of which two-thirds was paid in discharge of principal and the remainder as interest upon the advance.

The revising barrister refused to allow the claim to

vote:

Held, that the claimant's interest in these houses was of the value of 40s. by the year, at the least, above all charges, according to 8 Hen. 6, c. 7; and that he was therefore entitled to o vote for the county. Robinson v. Dunkley, 15 C. B., N. S., 478, confirmed.

Ar a court holden for the revision of the list of voters for the parish of St. Mary, in the southern division of the county of Leicester, one James Cope duly objected to the name of Benjamin Rolleston being retained on the list of voters for the said parish. The name of Benjamin Rolleston (hereinafter called the claimant) appeared upon the list of voters entitled to vote thus:

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In the month of February, in the year 1863, the claimant was possessed of three freehold tenements, and was desirous of borrowing the sum of 3001. in respect of his said three shares in the said society, and in consideration of the society advancing him that sum, he executed a mortgage in fee of the said freehold tenement to the society to secure the subscriptions, payments, redemption moneys, and fines in relation to the sum of 3001. by monthly instalments of 31. 9s., extending over a period of ten years.

The mortgage deed provided that, if during the above mentioned period the mortgagor neglected for four consecutive calendar months to pay all the subscriptions and payments, and to perform the regulations which, on his part as a shareholder and mortgagor, were by the rules of the society directed to be paid and performed, the society should enter into possession of the premises and sell and dispose of them.

The claimant has duly paid all the interest due under the mortgage deed, and has always been and now is in the actual possession of the property.

The periodical payments made by the claimant have amounted to 3501. in the whole. The claimant has two years' annual payments still to make, but he may redeem the mortgaged property for a present payment of 731. 1s.

The annual value of the freehold tenements is 31. 4s., and the annual payment made to the society is 411. 8s. This last-mentioned payment is made generally in reduction of the sum borrowed, and in discharge of the claimant's payments and subscriptions, in accordance with the rules of the said society.

The interest, which is not more than 7 per cent. for the term of years, is capitalised and added to the sum borrowed.

The receipts given by the society to the claimants do not show what sum is received for interest, and what is received for principal, but if the annual payment of 411. 8s. were apportioned, two third parts would be paid in discharge of principal, and one third part in payment of the interest.

It was contended on behalf of the claimant that only so much of the annual payment as represented the interest on the loan, as in the case of a common mortgage should be deducted from the annual value, and if this were done, the claimant has a freehold of 40s. annual value in the said freehold houses.

It was contended on behalf of the objector, that the whole of the payments to the said society, on whatever account they are made, should be set-off against the annual value of the property, and if this were done, the claimant has not a freehold of 40s. annual value in the said tenements.

The Revising Barrister was of opinion, that in accordance with the decided cases, the whole amount of the payments to the society was a charge upon the estate, and should be deducted from the annual value thereof, and that such deduction reduced the value of the estate below 40s., and he erased the name of the claimant off the list of voters.

Other appeals were consolidated.

If the court should be of opinion that only so much of annual payments as would represent the interest on the loan, as in the case of an ordinary mortgage, should be deducted from the annual value of the claimant's property, then the names of the said B. Rolleston and the other persons

mentioned in the schedule, were to be restored to the lists of voters; if otherwise, then their names were to be erased.

J. O. Griffits, for the appellant, argued that as in the case of an ordinary mortgage, the interest only should be considered a charge upon the land-the payment of principal is a mere investment for the benefit of the estate. He cited the cases afterwards reviewed in the judgments of the court. Quain, Q. C., for the respondent, relied upon the words of the statute 8 Hen. 6, c. 7, and the earlier authorities decided upon this point.

Griffits in reply.

Cur. adv. vult.

The

April 24.-BOVILL, C. J.-The claimant being a member of and holding shares in a building society, was the owner and in possession of certain freehold houses, in respect of which he claimed to be on the register of county voters. These houses he had conveyed by way of mortgage to the society as security for 3001. advanced to him, and by the mortgage-deed and rules of the society, in order to redeem the property, he was bound to pay, during a period of ten years from 1863, to the society monthly instalments of 37. 98. -which amounted to the sum of 411. 88. in each year; and in case of certain defaults the society might enter upon the houses. At the time in question the claimant had paid 350l., and two years remained during which he would have to pay the monthly instalments, or he might then have redeemed the property by a present payment of 731. 10s. The annual value of the houses was 31. 4s. It was contended for the claimant that only such sum as would be equivalent to interest on the loan ought to be deducted from the annual value to the claimant. The learned revising barrister was of opinion that the whole of the payments ought to be deducted in accordance with two decisions of this court. aud he disallowed the claim to vote. The appellant relied upon another and later decision of this court which he contended overruled the two previous cases. question submitted to us is whether only so much of the annual payments as would represent interest on the loan should be deducted, and upon the result of our opinion on that point this appeal is made to depend. The statute of 8 Hen. 6, c. 7, requires that the voter "shall have free land or tenement to the value of 40s. by the year at the least, above all charges," and declares that "such as have the greatest number of them that may expend 40s. by year and above, as afore is said, shall be returned by the sheriffs of every county knights for the Parliament." The sheriff is also empowered "to examine upon the Evangelists every such chooser how much he may expect by the year;" and the Act declares that he which cannot expend 40s. by year, as afore is said, shall in no wise be chooser." The property therefore must be of the value of 40s. a year at the least, above all charges within the meaning of that enactment. The statute 28 Geo. 3, c. 36, s. 6 treats the interest of the voter as one which must be of the value of 40s. by the year over and above the interest of any mortgage upon the estate, and also above all outgoings payable in respect of the said estate. Under the provisions of different statutes and ultimately by the Registration Act of 6 Vict. c. 18, s. 74, a person who has mortgaged his estate, but continues in possession, is entitled to the franchise, though his equitable estate must be of the

[C. P.

same value that would be requisite if he were still the owner of the legal estate: (see Copland v. Bartlett, 6 C. B. 18; and Barrow v. Buckmaster, 12 C. B. 664.) It has also been decided that expenses incurred in increasing the annual value must be deducted, because they are absolutely necessary in order to produce such value, such as the cost of manuring and cultivating land and the maintenance and repairs of houses and buildings (Hamilton v. Bass, 12 C. B. 631), the cost of collecting rents when such an expense is found to be necessary (Sherlock v. Steward, 7 C. B., N. S., 21), and when the property is let to a tenant the amount of the tenant's rates, if and when the landlord has undertaken to pay them: (Moorhouse v. Gilbertson, 14 C. B. 70.) Other cases have been dicided on the ground that the deductions sought to be made were charges within the meaning of the statute, such as a rentcharge (Copland v. Bartlett 6 C. B. 18, and the cases there cited by Mr. Badeley), and Barrow v. Buckmaster (12 C. B. 664), the yearly interest secured by a mortgage (Moore v. Carisbrooke 12 C. B. 661), and yearly interest actually paid by agreement, where the principal was secured by the mortgage: (Lee v. Hutchinson, 8 C. B. 16.) The same rule I apprehend would apply to the case of annuities or other annual sums charged upon the property; but, in the case of an ordinary mortgage it has never been supposed that the whole principal money must be deducted in the year when it is due or becomes payable. There are also three important cases directly bearing upon the present question, and each of them decided with reference to building societies. The first is the case of Copland v. Bartlett, where the claimant, being a member of a building society, had obtained a conveyance of the property, and had executed a mortgage to the trustees. The amount of the purchase money secured was 651., and the claimant was bound by the mortgage deed to pay 158. a month (equal to 91. a year); whilst the annual value of the property was only 8., but if only interest on the 651. was to be deducted there would have been a clear yearly value of 40s. This court decided that these monthly payments were a charge upon the property, and that they must be taken into account in ascertaining the annual value, and so they reduced the annual value below 40s.; the vote was disallowed. The next case was Beamish v. Stoke (11 C. B. 29). The annual value of the property there, was 6l., and it was mortgaged to the trustees of the building society; the amount due upon the mortgage for principal was 471. 10s. 3d,, and the payment which the claimant was bound to make of 4s. 6d. weekly on account of principal and interest amounted to 11. 148. per annum. This sum was apportioned by the secretary as follows: namely 81. 18s. 9d. in part liquidation of the principal of the mortgage debt; 6s. for incidental expenses of working the society; and 21. 10s. for premium or interest on the principal remaining unpaid. It was not disputed that the 68. and the 21. 10s. should be deducted, and the only question submitted to the court was whether the payment in part liquidation of the principal ought to be deducted in ascertaining the annual value. The court decided that the whole of these weekly payments constituted a charge upon the property, and must be deducted, notwithstanding a part of them was made for repayment of the principal.

V.

The last of the three cases is Robinson Dunkley, which came before this court in 1863, and is reported in 15 C. B., N. S., 478. In that case the claimant, who was a member of a building society, had executed a mortgage to them. The amount advanced in the first instance was 731. and he was bound to make monthly payments amounting in the whole to 41. per annum. The property was of the value of 31. per annum. On the 31st Jan. preceding the registration he had paid the whole amount owing by him with the exception of 21. This sum would be payable by him by monthly payments during the following six months, and was in fact paid by the month of July. The revising barrister expressly found as a fact that the 717., having been paid before the 31st Jan., and the remaining 21. by July, the claimant had a freehold prior to the 31st Jan. of the value of 40s. per annum, and, therefore, he retained his name on the list of voters. This case was decided in favour of the respondent on the appeal. It was contended before us that this latter case was at variance with the previous decisions, and virtually overruled them. It is difficult to reconcile those decisions, and still more difficult to distinguish the present case in principle from Robinson v. Dunkley. The question is, no doubt, involved in much doubt, and but for the decision in the last case, I should have had no hesitation in acting as the revising barrister has done in this case upon the authority of Copland v. Bartlett and Beamish v. Stoke, and upon the reasons of the very learned and eminent judges who decided those cases. The later case, however,

of Robinson v. Dunkley having been decided, I think it is better to abide by that decision; there are also strong arguments in support of it, and applying it to the present case, the result will be that, the payments made by the claimant representing a greater value than 40s. a year, the decision of the revising barrister must be reversed, and the claim to vote allowed. The question in these cases in future for the revising barrister to consider will be whether taking the payments which have been made for principal or purchase-money into account, and deducting the proper annual sums independently of the payments on account of principal, the claimant's interest in the property is of the value of 40s. by the year. If his interest in the property be found to be of that value he will be entitled to the franchise, otherwise his claim to be placed on the list of voters must be disallowed.

WILLES, J.—I am of the same opinion. This case ought to be decided according to the construction of the statutes and their application to the substantial interest of the mortgagor, not his dry legal as distinguished from his equitable estate. The statute of Hen. 6 would exclude him from the franchise, because of his not having the legal estate. The subsequent statutes have corrected this, and the effect of them is to treat the mortgagor as having the freehold subject to a charge of the principal money, or so much as remains unpaid, and of the interest. In an ordinary mortgage, payment of the principal may be enforced at any time after the day it falls due, but no regard is paid to that incumbrance provided that the statute of Hen. 6 is in other respects satisfied. To satisfy that statute two conditions must be fulfilled. First, the land must be freehold to the annual value of 40s. at the least above all charges,

66

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in the original “outre les reprises,” a term never applied that I can find to a payment which redounds to the permanent benefit of the owner of the land, as building a house or the like, but only to such payments as rentcharges, ordinary repairs, and taxes, and by analogy to interest, the payment of which, once made, is so much spent and gone, neither enjoyed by nor invested for the owner or mortgagor; secondly, the voter must be able to spend--that is, have for his own benefit, 40s. by the year. It follows, therefore, that to vote in respect of an equity of redemption, first, that estate must be of the value of 40s. by the year; and, secondly, the voter must have in respect thereof a present benefit or capacity of benefit of 40s. by the year. If the land is mortgaged up to its full value, or to such an amount that the equity of redemption is not worth the purchase of 40s. a year, the first condition is not fulfilled. This was the case supposed by Wilde, C.J., in Copland v. Bartlett (6 C. B. 23) when he asked "How was the right to vote formerly dealt with where the property in respect of which the vote was claimed was charged up to the full value? My impression is that the vote was never allowed." And the same opinion was expressed by Jervis, C.J., in Beamish v. Stoke (11 C. B. 37), when he said "The case does not find that that which the party has already paid towards the purchase-money is worth 40s. a year in perpetuity:" and Maule, J. said Suppose a man agreed to stand in the claimant's shoes, would it be worth his while to give 40s. a year for his interest in the land ?" This consideration was sufficient for the decision of those cases, which, though they raised and decided the question whether principal could be deducted, did so upon statements of fact not showing that the principal paid had created an interest worth 408. a year beyond repairs. Between those cases and the present, there are striking and cardinal differences of fact. No doubt expressions were used by the judges indicating an opinion that the payments on account of the principal were to be considered as charges, which unquestionably they were in one sense, viz., that unless enough had been paid on account of principal to make the equity of redemption worth the purchase of a perpetual 40s. a year, there was nothing to satisfy the first conditions in the statute. The concurrence of V. Williams, J., in Robinson v. Dunkley (15 C. B., N. S., 478), is conclusive as to the true scope of the authority. In the present case both conditions are fulfilled, The mortgage is for 300l., principal to be repaid with interest in ten years by instalments of 31. 98. a month, making 411. 88. a year, or, in all, 4147., so that the proportion of principal to interest is ascertained by the deed, and it is found as a fact. The property can, in fact, be redeemed for a present payment of 731. 10s., the payments remaining to be made, if paid as to-day, amounting to 821. 16s. The amount of value above all charges, except the mortgage, is 311. 10s., so that the equity of redemption, if sold at the ridiculously low price of five years' purchase, would produce a sum sufficient to pay off the whole remaining charges, and leave a balance which, if invested in Consols, would produce more than 40s. a year. Why? for this simple reason, because the payments made by the mortgagor were not all "reprises," but to the extent of the two-thirds, or thereabouts, paid (and found by the case to have been paid) on account of principal, they were investments, and permanently

beneficial investments, by and for the mortgagor, as much, or rather more, than if he had paid them into his bankers, to be ready for the mortgagee when he chose to call for his money. Each of those payments was a purchase for the mortgagor of so much of the mortgage interest in the land, and each of them added to the value of the mortgagor's estate, now accrues to his benefit. Each of them was therefore "expended" by and for him, each would, in a properly kept account, go to investment of capital, and would not be mere outgoings; that is not if there was a "reprise' in the proper sense of something taken back for the mere temporary use of the land. As for the payments being pre-appointed to be made on certain days, this cannot alter their judicial character. The payment of the principal is invariably pre-appointed for some day. It is for the convenience of the parties, not to alter the relation between them, that several days are mentioned instead of one. It follows from what has been said, that the second condition of the statute Hen. 6, c. 7, as modified by the subsequent Acts giving the franchise to a mortgagor, is also complied with, because, deducting from 41l. 88. the two-thirds which the case finds to be referable to principal, there remains 13. 168., which, deducted from 311. 108. leaves a clear substantial present annual income of 177. 148. In effect and substance the claimant has a freehold worth, at twenty years' purchase, 6301., less 73l. 10s. 5571. 10s., and deducting out of the two years' payments that remain, which can properly be called reprises," he can expend 177. 14s. by the year. Thus, both upon the reason of the matter, and according to the distinct authority of Erle, C. J., and his companions in Robinson v. Dunkley (15 C. B., N. S., 478), the decision against the right to vote was wrong, and ought to be reversed.

66

M. SMITH, J.-I am of the same opinion, and in consequence of the previous decision in this court I desire to add the reasons for my judgment. The claimant, who is the appellant, being seised in fee of land and houses, mortgaged them by a deed dated the 12th Feb. 1863, to the Leicester Building Society to secure 3001, advanced by the Society on three shares held by the claimant as a member of the society, to be repaid with capitalised interest, in ten years by monthly payments of 3l. 98. The mortgage was in fee, subject to a proviso for redemption upon payment by the claimant during ten years of the subscription, redemption moneys, and fines, payable by him in respect of his three shares, according to the rules of the society, and certain tables annexed to them; and the deed provided that when the 300l. and all other payments should have been satisfied, the security should be in a certain prescribed manner discharged. A power was contained in the deed enabling the trustees, in case of default in the payment of the instalments, to take possession of the property and sell the same to satisfy what might be due on the security. The case finds that the claimant has always been in the actual possession of the property, that he has kept up the payment of all his instalments, having paid in all 3501., and that he was entitled to redeem the property by a present payment of 731. It is also found that the annual value of the property is 311. 48. The revising barrister further finds, which the mortgage deed and rules enable him to do, that the interest which is not more than 7 MAG. CAS.-VOL VII.

[C. P.

per cent., is capitalised for the whole term, and added to the sum borrowed, and that although no apportionment is made in form, yet if the monthly instalments, which amount to the annual payment of 411. 88., were apportioned, two-thirds of it would be paid in discharge of principal, and one-third only in payment of interest. It is obvious from these findings that in substance two-thirds of the annual payment of 41. 8s., viz., 27. 128. goes in every year to reduce the principal, and so to increase the beneficial interest of the claimant in the estate, and that one-third viz., 13l. 168. only is attributable to interest, and that this latter sum when deducted from 311. 48., the. annual value of the property, leaves 17. 88., as the clear beneficial annual value of the estate to the claimant. The revising barrister held in accordance with what he considered to be the effect of the decided cases, that the whole amount of the payments to the society was a charge upon the estate, and should be deducted from the annual value, and that as this deduction would reduce such value below 40s., the name of the claimant should be erased from the list of voters. But, on the other hand, he found, as the fact undoubtedly is, that if so much only of the annual payments as represented the interest on the loan ought to be deducted from the annual value, then the claimant had a freehold of the annual value of 40s.; and if this court should hold that this was the proper deduction, he declared that the name of the claimant was to be restored to the list. It appears to me that this last declaration of the revising barrister ought to prevail, for on the above facts and findings I come to the conclusion that the claimant has a freehold of the value of more than 40s. by the year above all charges. The question to be decided is whether so much of the above annual payment as represents the repayment of the principal of the mortgage debt is a charge within the meaning of the statute 8 Hen. 6, to be deducted from the annual value of the freehold. The 8 Hen. 6, c. 7, requires the voter to "have free land or tenement to the value of 40s. by the year above all charges" (outre les reprises). The 6 Vict. c. 18, s. 74 (after reciting 2 Will. 4, c. 45, ss. 23 and 26), enacts that "No mortgagee of any lands or tenements shall have any vote "for or by reason of any mortgage estate therein, unless he be in the actual possession or receipt of the rents and profits thereof, but that the mortgagor in actual possession or in receipt of the rents and profits thereof shall and may vote for the same, notwithstanding such mortgage." These are the statutes to be expounded. statute 6 Vict. expressly enacts that a mortgagor in possession shall vote notwithstanding the mortgage, and as a consequence notwithstanding the mortgage debt. It has been settled, and, although at one time much questioned, it is not now disputed, that the interest of the mortgage debt is a charge to be deducted from the annual value of the land. It was so decided by several election committees (see the cases collected in Rogers on Elections). The Act 28 Geo. 3, c. 36, s. 6, required a declaration from the voter that he had an estate of the clear yearly value of 4. over and above the interest of any money secured by mortgage upon the said estate." This enactment, whilst it is a clear statutory declaration that the interest on a mortgage debt is to be deducted from the annual value, amounts by necessary im

G

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